But Judge Henry E. Hudson, in Virginia v. Sebelius, offers a cramped analysis of the commerce clause that seems at odds with these cases. In striking down the health care law, Hudson concedes that Congress can regulate economic activity that affects interstate commerce. But, Hudson contends, Congress cannot regulate “inactivity.” Thus, according to Hudson, Congress cannot regulate those who seek not to participate in the health care market by having insurance.
Hudson’s decision has been derided by many legal scholars, and conflicts with the decisions of other courts that have reviewed challenges to the health care law. (Hudson has also been criticized for his financial connection with an organization that provides services to a number of Republican elected officials — including Virginia Attorney General Ken Cuccinelli, who filed the legal challenge to the health care law.)
But simply reading the Constitution, without reference to the nearly 200 years of Supreme Court interpretation of its various provisions, doesn’t help us understand the interplay between the commerce clause, the necessary and proper clause, and Congress’ power to levy taxes. Nor will it bring the new Tea Party-spooked congressional Republicans any closer to completing the hard work of enacting legislation in a divided Congress.
What’s even more disturbing are those Tea Party activists and Republicans who position themselves as the only true protectors of the Constitution. In fact, the whole exercise of reading the Constitution at the start of the new House session was designed to suggest that Republicans will be operating within the confines of the Constitution, in contrast with their Democratic counterparts.
It is ironic, therefore, that it’s most often members of the Republican Party who seem most determined to change or overturn provisions of the Constitution — whether it’s Iowa Rep. Steve King’s new proposal to overturn the Constitution’s birthright-citizenship provision or earlier efforts to amend the Constitution to outlaw same-sex marriage. Other Republican elected officials recently advocated nullification — the refusal by states to comply with federal law — a term most often associated with Southern resistance to school desegregation orders. But no matter. The Constitution — along with “patriotism,” “national security” and “family values” — is fast becoming yet another term co-opted as part of the permanent GOP campaign.
Almost 200 years ago, Chief Justice Marshall cautioned against defining Congress’ power in Article I so narrowly that our foundational document would become merely a “splendid bauble.” Congressional Republicans will need to do more than merely admire the Constitution or parrot its many provisions en masse to fulfill their oath of office. It’s all well and good to carry a copy of the Constitution in one’s pocket — in fact, it’s an excellent habit for the citizens of any country. But our nation’s legislators will need to do more than carry and read the Constitution. They will have to do the hard work of enacting legislation to strengthen our nation and to advance the people of this country as the framers empowered them to do.
Sherrilyn A. Ifill, who teaches at the law school of the University of Maryland, writes about the law for The Root.