Published Thursday, June 21, 2012
Either this week or next, the U.S. Supreme Court under the leadership of Chief Justice John Roberts will announce its decision in one of the most important questions ever put before it: Is “Obamacare” constitutional?
At least on this question, we should hope the Roberts Court measures up to the general caliber of the Fuller Court, named for Chief Justice Melville Fuller.
Does a court interpret law or manufacture it? Does it apply the Constitution according to what its text says or is it willing to abandon it to accommodate current whims, trendy ideologies, or alleged “needs” of the moment? Were our liberties more or less secure after it did its work? What today’s justices think of these matters will show itself in how they rule in the health care case.
The Fuller Court, encompassing a parade of justices who came and went during Fuller’s 22 years as chief, was not consistent on all counts. But unlike any subsequent Court, it stretched neither the law nor the Constitution beyond what the words say. When it found law to be in conflict with the Constitution, it usually sided with the latter because liberty under the rule of law was its highest priority. It upheld the importance of a limited federal role, strengthened the role of the states in our federal system, and defended contract and property rights.
Melville Weston Fuller was born in Maine in 1833. Both sides of his family were staunch Jacksonian Democrats — hard money and a small federal government being foremost among the principles they embraced. After more than 30 years practicing law, President Grover Cleveland elevated him to Chief Justice in 1888.
Throughout his career, Fuller called for keeping government in its proper place as a protector of our liberties, not as an assaulter of them. He opposed the arbitrary arrests, suspension of habeas corpus, and other wartime indiscretions of the Lincoln administration. He attacked protectionism (high tariffs) as special-interest legislation that hurt consumers. He spoke out against unbacked paper money as a form of theft, fraud and inflation.
The Fuller Court should be admired for its jurisprudence. When freedom of commerce was at issue, the Fuller Court did not carelessly allow government interference. It staunchly defended the sanctity of private contract and private property. The Court was far friendlier to property rights in eminent-domain cases than the recent Supreme Courts.
Melville Fuller and most of his colleagues actually took their oath to defend the supreme law of the land very seriously, a notion that seems sadly quaint today, when sweeping judicial activism is a mainstream law-school principle. Fuller would surely reject the notion that the Constitution grants Congress the power to force individuals to buy a product in the name of regulating interstate commerce.
Fuller would be appalled at Washington’s attempt to stretch the Constitution into justification for the meddlesome and unaffordable monstrosity called Obamacare. In the spirit of the Fuller Court, let’s hope the Roberts Court drives a stake in it.
(Lawrence W. Reed, a resident of Newnan, is president of the Foundation for Economic Education in Irvington, N.Y., and Atlanta.)