America's nearly 250-year-long experiment with democracy has flourished on the genius of innovations fundamental to our Constitution. Checks and balances, federalism, the elegant simplicity of the bicameral legislature—these are a few of the landmark institutions achieved through the grueling debates and extensive reflections of our nation's fathers.
That is not to say, however, that the American constitutional landscape has remained stagnant. To many, it seems that the incorporation of the Bill of Rights with the 14th Amendment has dealt a considerable blow to federalism.
Others point to the obsolescence of the Electoral College, highlighting the absurdity of mid-level party officials functioning as electors to choose the presidential nominee.
And the question of church and state—the extent to which they ought to be separated—has fluctuated continuously from Jefferson's Wall to the Lemon Test to Rick Santorum's nearly theocratic interpretation of the First Amendment.
In these examples we see an important and oft-discussed phenomenon: the continuing variability of the term 'constitutionality.' What is constitutional and by what metric can we smartly make those decisions?
This week's Supreme Court fight over the constitutionality of the Affordable Care Act (ACA)—the Obama administration's health care reform—is an especially important chapter in the saga of the conflict over American constitutional law.
The Court's ruling in June on the ACA will do a lot more than just determine who has the upper hand in contemporary jousts over constitutional interpretation—particularly over the interstate commerce clause. Rather, the very role and integrity of the Supreme Court hangs in the balance.
The system of checks and balances is one of our many democratic precepts whose eminence almost never falls into question. A good rule of thumb is that if a fourth grader can expound on a civic institution's importance, it probably shouldn't be placed on the chopping block. If the Court rules that the individual mandate of the health care law is unconstitutional, we will be witness to the tragic subordination of the Supreme Court to the whims of Congress.
Such a decision would be delivered by a majority of partisan Republican justices, rather than a non-partisan conservative majority.
Many point to Bush v. Gore as the beginning of the Court's irreversible politicization. Yes, the outcome decided an election, but that was the unavoidable task at hand. The vote in Florida in 2000 was a freak accident; and though I might agree that the ultimate ruling is a significant blemish on the Court's legacy, it did not fundamentally alter the way the Court does business.
However, whether or not James Madison would have agreed with legislative mandates, such mandates are constitutional now. We are all required to participate in Social Security. Car insurance is mandatory. And had Senator Ted Kennedy acquiesced to the moderate and market-based health care plan of the one and only Richard Nixon, a mandate for the purchase of health care would have been born into a country without partisan-based threats of constitutional challenges.
The Court will have to turn American legislative history inside out to justify an overturning of the mandate. And that is a very real possibility.
It is no secret that elected representatives are terribly obsequious. After all, they have to run for election. Consequently, the competing narratives offered by candidates for office tend to concede no common ground. Political battles transform quickly into reductive moral and cultural disputes that can be encapsulated by the simplest of dichotomies—good and evil, moral and depraved, and even light and dark when certain folks are feeling especially racist.
The partisan nature of the executive and legislative branches is precisely why the independence and independent-mindedness of the Supreme Court has been so important.
Only an independent judiciary can grapple with the hopelessly complicated and ambiguous questions that surround the term "constitutionality." It is for that reason that different interpretive doctrines have seen periodic revivals.
However, if the Court overturns the ACA's health care mandate, a provision with nearly a century's worth of legislative precedence, it will transform constitutionality from a serious intellectual and political question into a politicized oversimplification.
The conservative majority on the Court will never escape the stench if it bows to the myopic political aims of congressional Republicans. The Affordable Care Act was passed in compliance with the constitutionally prescribed path for major legislative accomplishment—through an ugly, compromising, and ultimately unsatisfying brawl. Neither side was happy, concessions were made, approval ratings dropped. But that was what our Constitution demanded.
If that same bill is deemed unconstitutional two and a half years later, it will be because a majority of justices saw themselves as Republicans rather than patriots, and thus decided to tragically and irrevocably politicize the notion of constitutionality.
Judah Isseroff is a member of the Class of 2013.