John Roberts at the Sept. 5, 2005, announcement at which President George W. Bush nominated Roberts to be Chief Justice of the U.S. Supreme Court. (White House photo by Paul Morse)
U.S. Supreme Court Chief Justice John Roberts is getting praise from some quarters -- and condemnation from others -- for judging the 2010 health-care law constitutional, but in doing so Roberts also established, now as a constitutional principle, the false historical analysis that has long dominated right-wing legal circles.
Although giving the Affordable Care Act a thumbs-up by citing Congress' taxing authority, Roberts gave a thumbs-down to Congress' reliance on the Commerce Clause to justify the law's legality. In that part of his ruling, Roberts, in effect, rewrote the nation's founding document, second-guessing the Framers' decision to grant Congress sweeping power to regulate interstate commerce.
In Roberts's decision, you find references to the faux founding history that the Right has been assembling over the past several decades, including "research" funded by right-wing billionaires such as the Koch Brothers, who have bankrolled libertarian think tanks like Cato and academic centers at places such as George Mason University.
While the American Left has largely sat on the sidelines, the Right has been busy cherry-picking a few quotes here and there from the Framers to turn the likes of James Madison (the Constitution's chief architect) into free-marketeers who wanted a weak federal government and believed fervently in states' rights.
Roberts, like the other four right-wing justices on the Supreme Court, was born and raised professionally in this incubator of manufactured history -- and that "group think" colored his legal "reasoning" in striking down the Commerce Clause as a constitutional foundation for the Affordable Care Act.
So, for instance, you have Roberts making the obligatory right-wing reference to Madison's Federalist Paper No. 45, in which Madison sought to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.
Rather than view this essay in context -- or even note Madison's expressed enthusiasm for the Commerce Clause in No. 45 -- the Right seizes on Madison's rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution's federal powers were contained in the Articles of Confederation, albeit in far weaker form.
In Federalist Paper No. 45, entitled "The Alleged Danger From the Powers of the Union to the State Governments Considered," Madison wrote: "If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS."
Today's Right also trumpets Madison's summation, that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
But the Right ignores another part of No. 45, in which Madison writes: "The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."
The Constitution's Power Grab
The Right also dances around the context of the Constitution itself. It was the greatest shift of power from the states to the federal government in American history, but the Right never wants to admit that fact.
The Constitution can only be understood in contrast to what it replaced, the Articles of Confederation. That original governing framework (from 1777 to 1787) failed the nation because it made the states sovereign and independent and left the federal government weak and dependent, essentially a supplicant begging the states for resources.
Madison and his Virginian ally, General George Washington, were among the earliest to understand the profound flaws of the Articles of Confederation. Washington's experience was perhaps the most searing since he watched his Continental Army suffer from lack of supplies and shortage of pay because states reneged on promises to fund the central government.
After the Revolutionary War, key Founders also recognized that U.S. independence was endangered by how weak the federal government was under the Articles of Confederation. One particular concern was how European powers tried to play off one state or region against another through the manipulation of commercial relations.
This threat -- and the need for a more coordinated policy toward national commerce -- gave rise to Madison's idea of giving the central government control over interstate commerce, a proposal that Madison first raised as a possible amendment to the Articles of Confederation.
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