Texas Supreme Justice Don Willett, a friend of this blog, wrote a thoughtful concurring opinion in Robinson v. Crown Cork & Seal Company, focusing on the interplay between the state, the courts, and individual liberty. I wrote a lengthy post analyzing the opinion here.
I am very pleased to see that George Will, one of my favorite columnists, picked up on Willett’s opinion, and quoted it at length in his column in the Washington Post.
Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution’s prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature’s judgment that its police power – its general authority to protect the public welfare – trumped the constitutional ban on retroactive legislation?
The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate.
Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett’s words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?
Willett says: In our democracy, the legislature’s policymaking power “though unrivaled, is not unlimited.” The Constitution reigns supreme: “There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands.”
Thus a legislature’s judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. “The political branches decide if laws pass; courts decide if laws pass muster,” wrote Willett. Judges must recognize that legislators’ policymaking primacy “is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence.”
What Willett says of the states’ police power is applicable to Congress’s power under the commerce clause: “When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction.” And: “If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable.”
The judiciary’s role as referee of constitutional disputes is, Willett says, “confined yet consequential.” But, “If judicial review means anything, it is that judicial restraint does not allow everything.” And there can come a “constitutional tipping point” where, by excessive deference to a legislature in the face of a constitutional limitation, “adjudication more resembles abdication.” Then a state’s police power (or Congress’s power under the commerce clause) can “extinguish constitutional liberties with nonchalance.”
Like the U.S. Constitution, the Texas Constitution, Willett notes, is “irrefutably framed in proscription.” It “declares an emphatic ‘no’ to myriad government undertakings,” no matter how much a majority might desire them. So does the U.S. Constitution, as in the first words of the Bill of Rights: “Congress shall make no law . . .”
Judicial review, he writes, sometimes means preventing today’s majority from overturning yesterday’s supermajority – “the one that ratified our solemn Constitution.”
Hence the idea that federal judges are accountable to no current constituency. When construing the Constitution, however, they are duty-bound to be faithful to the constituency of those who framed and ratified it.
“There is,” Willett explains, “a profound difference between an activist judge and anengaged judge.” The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.
Unsurprisingly, the Constitutional Accountability Center has a reply.