A Nation Like No Other

by Newt Gingrich

  Additionally, dozens of state attorneys general have filed suit against ObamaCare, charging that the individual mandate is unconstitutional. Judges have offered divergent opinions so far, but ObamaCare opponents scored a big victory in January 2011 in State of Florida v. United States Department of Health and Human Services, in which Florida Federal District Court judge Roger Vinson ruled that “Congress exceeded the bounds of its authority” by approving ObamaCare’s individual mandate.

  Vinson held that Congress’s interpretation of the Commerce Clause is a “radical departure” from historical precedent. By penalizing Americans who do not buy health insurance, he argued, the government is taking the unprecedented step of regulating “inactivity.” His decision contained a stark warning: if the legislature is granted this authority, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.” As a result, Vinson held that the entire ObamaCare law is unconstitutional. This case followed the same reasoning as Commonwealth of Virginia v. Kathleen Sebelius, in which Judge Henry Hudson found ObamaCare’s individual mandate to be unconstitutional.

  Aside from this mammoth expansion of federal power, ObamaCare also violates the rule of law in its granting of vast discretion to administrative agencies. The bill contains 1,968 specific grants of power to the Washington bureaucracy,9 including numerous expensive requirements on employers (which are especially damaging to small businesses) and on the states. Earlier in our history, as these regulations took effect, their unpopularity would have forced Congress to scrap the bill and start over. But the administrative state offered Congress an easier fix. Instead of changing the bill, Congress simply empowered the secretary of health and human services, who administers ObamaCare, to issue waivers that exempt recipient companies and organizations from some of the bill’s onerous requirements. To date, HHS has issued over a thousand waivers, including one waiver to the entire state of Maine.

  Instead of writing a law that applies to all, Congress has written a law that applies to some but not to others. Waivers are generously distributed to those with political connections and clout or those who can afford expensive lawyers and lobbyists. Powerful supporters of the Democratic Party like Big Labor are also major recipients of ObamaCare waivers. This is all profoundly unfair to the millions of small businesses who lack the money and resources to influence Washington. As legal scholar Richard Epstein wrote in Forbes magazine,Waivers are by definition an exercise of administrative discretion that benefits the party who receives its special dispensation. Yet nothing in Obamacare explains who should receive these waivers or why.

  The dangers from this uncertainty are enormous. Make no mistake about it, a waiver gives the favored organization a competitive advantage over its rivals. But it is not only one applicant that pulls out all the stops. Its competitors often follow suit while simultaneously trying to block the waiver for the original applicant. Administrative expertise quickly takes a back seat to old-fashioned political muscle and intrigue.10

  This arbitrary “rule by waiver” is a fundamental violation of the rule of law. In fact, it negates the rule of law and replaces it with the rule of Secretary Sebelius, President Obama, and the Democratic Party.

  THE RADICAL USURPATIONS OF JUDICIAL SUPREMACY

  Ever since its 1958 decision in Cooper v. Aaron, the Supreme Court has held that the federal judiciary is supreme among the three branches of government in deciding the meaning of the Constitution. As Stanford Law School dean Larry Kramer explains, the decision was an historic power grab:In 1958 … all nine Justices signed an extraordinary opinion in Cooper v. Aaron insisting that Marbury [v. Madison] had “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that this idea “has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” This was, of course, just bluster and puff. As we have seen, Marbury said no such thing, and judicial supremacy was not cheerfully embraced in the years after Marbury was decided. The Justices in Cooper were not reporting a fact so much as trying to manufacture one.…The declaration of judicial interpretive supremacy evoked considerable skepticism at the time. But here is the striking thing: after Cooper v. Aaron, the idea of judicial supremacy seemed gradually, at long last, to find wide public acceptance.

  Having declared itself superior to the legislative and executive branches, the Supreme Court has largely removed the constitutional checks and balances on its powers. This is a radical departure from the vision of our Founders, none of whom believed in judicial supremacy. To the contrary, in Federalist no. 78 Alexander Hamilton characterized the judiciary as the weakest of the three branches. Likewise, in a letter to William Jarvis in 1820, Thomas Jefferson expressed his fear of judicial supremacy:[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. …When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.11

  Jefferson reiterated his concerns in a letter he wrote a year later: “The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”

  Judicial supremacy was also decried by Abraham Lincoln—a man who, we should remember, reentered politics largely as an outraged response to the Supreme Court’s pro-slavery decision in the Dred Scott case. In his inaugural address, Lincoln declared, “[T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” For Lincoln, judicial supremacy necessarily entailed a surrender of self-government.

  Today, a decisive battle is being waged that will determine the future of American self-government. The flash point is whether the U.S. Constitution allows the federal government and state governments to pass laws defining marriage as between one man and one woman. The federal government passed such a law in 1996, the Defense of Marriage Act (DOMA), and many state governments have passed similar laws or constitutional amendments.

  The stakes for self-government could not be higher. If the Supreme Court usurps the power to define marriage, then the American people will have truly lost the right to rule themselves. The Constitution gives the judiciary no authority to adjudicate this issue, and it defies belief that the “weakest” branch of government has the power to overturn an institution so vital to the Founders—marriage—that none even entertained the idea of someone challenging it.

  More than thirty states have held referenda on gay marriage, and voters in every one of those states have chosen to defend traditional marriage. But to those who would replace the rule of law with the rule of men—or specifically, the rule of a clique of judges—the consent of the governed is less a cherished principle than an obstacle to be overcome.

  RADICAL SECULARISM: THE OFFICIAL RELIGION OF THE UNITED STATES

  Radical secularists posit that religion and morality have no role to play in lawmaking. For them,
the only legitimate source of legislation is the tenets of radical secularism itself. Ironically, the dogmatic intolerance they display toward any ideas outside their own ideology shows they are, in fact, members of the exact type of religious sect the Constitution deems ineligible of government sponsorship. Worse still, in flagrant violation of the anti-establishment clause, today the judiciary is effectively establishing this radical secularist religion as the official religion of the federal government.

  The Founders banned the establishment of an official federal religion out of fear that, as was the case in Europe, such a privileged institution would infringe on the people’s liberties. And this has indeed been the result of the government’s embrace of radical secularism. Supreme Court justice Potter Stewart warned of this danger in his lone dissent to the Court’s 1963 decision in School District of Abington Township, Pennsylvania v. Schempp, which held that it was unconstitutional to read the Bible in school or recite the Lord’s Prayer:It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or, at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private. (Emphasis added)

  The judiciary has been the key instrument in enshrining radical secularism as an official, privileged religion. Here’s how it does it. In analyzing whether laws violate constitutional rights such as equal protection or free speech, the Supreme Court has long held that courts should consider whether the challenged law furthers a legitimate state interest. For over a century the courts recognized a standard list of these state interests (also called police powers): “the health, safety, morals, and general welfare of the public.”

  As this list shows, the public’s moral judgments were viewed as a legitimate basis for legislation. Relying on this principle, courts have upheld the constitutionality of laws prohibiting conduct widely recognized as immoral, such as public indecency, prostitution, polygamy, child pornography, and animal cruelty. For example, in 1991 the Supreme Court upheld a state law prohibiting public nudity, explaining that the law was justified by “a substantial government interest in protecting order and morality.”12

  However, in a series of cases starting with Roe v. Wade, the Supreme Court and lower federal courts have steadily undermined this principle. Surveying the nation’s long history of prohibiting abortion based on moral views, the Court acknowledged in Roe that “the moral standards one establishes and seeks to observe, are … likely to influence and to color one’s thinking and conclusions about abortion.” Nevertheless, it held that states do not have a sufficiently compelling moral interest to justify outlawing abortion.

  In recent years, as the gay rights movement has taken its cause to the courts, the Supreme Court has again waffled on whether the Constitution permits the American people to enact laws reflecting their moral judgments. In 1992—the year after the Court upheld state bans on public nudity—the people of Colorado approved a statewide referendum to amend the state’s constitution to invalidate local laws and ordinances establishing special protections for homosexuals. In Romer v. Evans the Supreme Court struck down the amendment. Studiously avoiding the question of whether the moral judgments of the people of Colorado are a legitimate basis for legislation, the Court simply concluded that the amendment did not “further a proper legislative end.”13

  Less than a decade later, the Court concluded in Lawrence v. Texas that a Texas law banning homosexual conduct, while “firmly rooted in Judeo-Christian moral and ethical standards … further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”14

  But Justice Sandra Day O’Connor was more explicit in a concurring opinion, arguing that “[m]oral disapproval of a group cannot be a legitimate governmental interest,” and equating “moral disapproval” of a group with a “bare desire to harm the group.”15 This was a radical assertion with enormous consequences for American jurisprudence. As Justice Scalia pointed out in dissent, “This effectively decrees the end of all morals legislation,” including “criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”16

  Lower court opinions in the wake of Lawrence reveal continuing confusion surrounding the basic question of whether laws can be based on moral considerations. While some courts have concluded that, after Lawrence, “public morality likely remains a constitutionally rational basis for legislation,”17 others have found the opposite and struck down, for example, a federal law banning the distribution of obscene materials and a Texas law prohibiting the sale of sex toys.18

  These conflicting decisions provide some telling insights about radical secularism. First, something has gone wrong when courts question whether widespread public judgments rooted in Judeo-Christian morality and centuries of American tradition are a legitimate basis for making law. The entire corpus of thought left by our founding generation, including both public and private correspondence, indicates they would have been appalled by the proposition that public morals were not a legitimate state interest.

  Second, the logic of radical secularism not only displaces traditional moral judgments, it affirmatively condemns them. As Justice Scalia pointed out in his dissents in Romer and Lawrence, once morality is no longer a legitimate state interest, relying on moral considerations in lawmaking becomes a form of bigotry akin to racism.

  Finally, radical secularist thinking is ultimately sectarian and partisan. It turns the coercive power of government against the Judeo-Christian tradition that animated America’s founding, and indeed, the advent of Western civilization. Traditional moral reasoning is displaced and stigmatized in order to make room for unelected judges’ arbitrary moral views. As a Texas judge recently observed in dissenting from one such affirmation of radical secularism, “The Court ignores that by creating morality-based, non-textual rights it does nothing more than substitute its own moral compass for that of the People.”19

  The balancing of individual rights and the public’s interest in morality has always been, and will always be, a difficult question. These issues have traditionally been subject to public debate and decided by the people’s elected legislators. But with radical secularism becoming established as the judiciary’s guiding ideology, that debate is being taken from the people and lorded over by enrobed activists whose moral compass is drastically at odds with that of the vast majority of their countrymen.

  THE ATTACK ON DOMA

  The recent decision by President Obama and Attorney General Eric Holder not to defend the constitutionality of the Defense of Marriage Act (DOMA) in federal court is yet another example of the abandonment of the rule of law.

  In February 2011, Holder informed the congressional leadership that Obama had decided to cease defending DOMA in the courts because the president believes the law is unconstitutional. According to Holder’s letter,the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense [of the law].…The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”20 (Emphasis added)

  The letter expresses the following log
ic: if lawmakers engage in “stereotype-based thinking” when they vote for a law—as Holder and Obama claim was the case with DOMA supporters—then that law is unconstitutional.

  This novel understanding of constitutional law becomes even more ludicrous when one realizes that the ostensibly bigoted thinking they found objectionable was Judeo-Christian morality. This was further clarified in a footnote to the letter that described what constitutes supposedly unconstitutional thinking:See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people … feel ought to be illegitimate” and “put[s] a stamp of approval … on a union that many people … think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are “in accord with nature and hence have a moral component”).21

  Here, President Obama and Attorney General Holder essentially argue that Judeo-Christian morality cannot serve as a legitimate source for American lawmaking in general and for defining marriage in particular, since Judeo-Christian morality is, for them, “precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

  This may seem like a strange position for Obama to take, considering that in his book The Audacity of Hope he alludes to his religion as the reason for his own opposition to same-sex marriage.22 Then again, Obama has stated that his position on this issue is “evolving.” That apparently means he now believes that supporters of traditional marriage are mere bigots, that the Constitution demands the legalization of same-sex marriage, and that he believes this so strongly that he can violate his duty to uphold laws passed by Congress. But because most Americans still support traditional marriage, he lacks the audacity to simply say what everyone already knows—that he supports gay marriage and believes the courts should impose it.