In last week’s NFIB v Sebelius Obamacare ruling, it looks a lot like the Supreme Court’s opinion rewrote the law in order to uphold it by calling the Individual Mandate’s exaction for not buying appropriate health insurance a tax. Indeed, this was a central view of the major dissenting opinion. Moreover, this ruling, whether it constitutes a rewrite of the law or not, seems to amend the Constitution by injecting a taxing power into the Taxing Clause that had heretofore not existed: the capacity for the Federal government to tax the inactivity of private citizens. As a result, I thought I’d write a bit, in my hubris, about the permissible mechanisms for amending the Constitution.
The Constitution’s Article V is quite clear on this; the essentials are these (I’ve elided a couple of items that, today, are unlikely to come into question; read the whole Article to see them):
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….
Notice that. The people’s elected representatives in the Congress of the Federal government can propose amendments, but they can do no more than that. The President cannot even do that much, except in his capacity as a private citizen. None of the members of the Judicial Branch—the Supreme Court Justices, for instance—cannot even do that much, except in their capacities as private citizens.
The people of the United States, through their elected representatives in their State legislatures, or through their conventions in each of the several States, also can propose amendments to the Constitution.
Only the people of the United States, though, through their elected representatives in their State legislatures, or through their conventions in each of the several States, can ratify an amendment to the Constitution.
Amendment by the Federal Congress is not permissible. Amendment from the judicial bench is not permissible. The men and women who occupy Congressional and judicial positions, moreover, are sworn to uphold the Constitution as it exists, not as they might wish it to be.
Chief Justice John Roberts cited extensively from prior cases (as did Justice Ruth Bader Ginsburg in her opinion and the Four Dissenters in theirs). Justice David Josiah Brewer wrote in prior case not cited by any of them, South Carolina v United States:
The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.
From the Supreme Court’s perspective, the Constitution is what it says it is. Nothing else. Convenient reinterpretations of the plain language to achieve a convenient end is amendment from the bench: rule by law.