Roberts sets forth the concept of limited government simply and clearly:
Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the firstplace. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government.As Alexander Hamilton put it, “the Constitution is itself,in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10. The Federal Government has expanded dramatically ove rthe past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010). The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).
Roberts then briefly describes the three powers of Congress pursuant to which this law may have been enacted: the Commerce Clause, the Tax and Spending Clause, and the Necessary and Proper Clause. Following that discussion the Chief Justice articulates a fundamental limitation on the power of the courts:
we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, ....
The full quotation, in my opinion, contains a gratuitous political jab:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise northe prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences oftheir political choices.
Despite the impropriety of the invitation to throw Democrats out of office for enacting a system of universal health care coverage, the Chief Justice appropriately acknowledges the central reason why it was appropriate for the Court to uphold this law: the courts are obligated to defer to the economic judgments of our state and national legislatures. Justice Roberts then returns to a discussion of the principle that the courts protect our liberty not only by respecting individual rights but also by properly confining the powers of government to those granted by the Constitution.
Roberts closes the introductory portion of his opinion with these words:
The questions before us must be considered against the background of these basic principles.
This introductory portion of the Chief's opinion setting forth the "basic principles" of limited government is likely to be remembered and quoted long after the debate over universal health care coverage has ceased. I predict that this passage will be quoted in constitutional law textbooks for years to come. It will certainly be included in my own casebook.
Wilson Huhn teaches constitutional law at The University of Akron School of Law.
Post a Comment
I cheerfully concede, for the sake of argument only, my every shortcoming and limitation. In commenting please address the merits of my arguments.