Ethics & Public Policy Center

The Roberts Opinion

Published in National Review Online on July 2, 2012


George Weigel

Distinguished Senior Fellow and William E. Simon Chair in Catholic Studies


Krakow, Poland—The thought may have occurred because I was en route from Rome to Krakow the day the Obamacare decision was handed down, traveling between the administrative center of Catholic Christianity and one of Catholicism’s most vibrant local churches. But whatever its provenance, the idea came to me, after reading Chief Justice John Roberts’s majority opinion, that those who applauded it and those who deplored it might both benefit from considering it through the lens of an old-fashioned theme in Catholic biblical interpretation—the idea that a scriptural text contains a sensus plenior, a fuller or deeper meaning, than can be apparent at first glance.

The American scholar Raymond E. Brown, one of the first Catholics in the Anglosphere to use the historical-critical method of biblical exegesis, nonetheless wrote a dissertation on the older exegetical notion of the sensus plenior, which he defined in these terms:

That additional, deeper meaning, intended by God but not clearly intended by the human author, which is seen to exist in the words of a biblical text (or group of texts, or even a whole book) when they are studied in the light of further revelation or development in the understanding of revelation.

I have no special insight into the mind or motivations of the “human author” of the Obamacare majority opinion; Chief Justice Roberts is certainly not God, and Supreme Court decisions are not “revelation.” But just as the insights that come from history and experience can unveil in biblical texts truths that their authors were only dimly aware of (or that they could not imagine in their own time and context), so there may be truths embedded in the chief justice’s opinion that have implications far beyond the Affordable Care Act—truths that could in fact presage the demise of Obamacare and the beginnings of a new national commitment to building the responsible society.

This is not to suggest that the chief justice got it right in his judgment. Insofar as a non-lawyer can understand the subtleties of these things, those who contend that Roberts’s attempt to constitutionally justify the individual mandate by treating it as a tax was undone, as to both logic and precedent, in the dissenting opinion of Justices Scalia, Kennedy, Thomas, and Alito seem to have a very strong case. But the chief justice’s opinion contained several dicta that point us to deeper truths about the continuing Obamacare debate, the Congress, the responsibilities of the American people, and the future of our democratic political culture. Which is to say that, read via the sensus plenior, and irrespective of its finding, the Roberts opinion can be seen as a welcome call to recover an American constitutional order that has been too often forgotten during decades of judicial supremacy.

The first of these “deeper” truths is that the convictions and character of the American people are the ultimate guarantor of that constitutional order and the liberties it was intended to protect. The Constitution, the chief justice notes, clearly gives the Congress the power to tax and spend. The ultimate constraint on that power, however, is not the federal judiciary but the people’s moral and political judgments. The chief justice thereby suggests that if “we, the people of the United States,” do not like the way the Congress taxes and spends, it is not only our prerogative but our responsibility to do something about it by electing new representatives who will tax and spend differently.

So one “deeper truth” in the Roberts opinion is that the days of contempt-for-Congress-in-general linked to approval-of-my-member-of-Congress-in-particular (a widespread phenomenon, according to many polls) have to end. If “my member” is party to a power grab by the federal government over one-sixth of the U.S. economy, and if I disapprove of that on fiscal grounds, constitutional grounds, public-policy grounds, moral grounds, some of the above, or all of the above, then my duty is to help elect someone else, no matter how good “my member” is at delivering the Social Security check on time or straightening out my IRS problems, and no matter what party my grandparents habitually voted for. Thus the chief justice’s bluntly phrased reminder that “it is not [the Court's] job to protect the people from the consequences of their political choices,” far from being a dodge of judicial responsibility, ought to be read, according to the sensus plenior, as a summons to a new national political maturity—a recognition that voting is not a glandular exercise but an exercise in moral and political judgment.

The second of the deeper truths implied by the Roberts opinion is that the Congress as presently constituted and currently functioning has too often been derelict in its constitutional duties. Thus at several points in his opinion, Chief Justice Roberts suggests, in some instances sharply, that the Congress should get serious. The majority opinion underscored at several points that constitutional approval of the individual mandate was not a judgment on the mandate’s soundness as policy. This implies that the policy might, in fact, be a stupid one—stupid policy the Obama administration made worse by an appeal to the Constitution’s Commerce Clause that, upheld, would have destroyed the notion of the federal government as a government of limited and enumerated powers.

There were several barely disguised smackdowns in the chief justice’s refusal to accede to this Commerce Clause argument and to the lax congressional lawmaking it attempted to justify. They included a blunt lesson in elementary English (“the language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated”) and a devastating analogy (“Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables”). Beyond this, however, deeper truths were beckoning: the truth that the Obamacare bill was a legislative dog’s breakfast that reflected badly on the competence, honesty, and public-spiritedness of a Congress whipsawed by various interests; the truth that the constitutional order is jeopardized when the Supreme Court becomes a crutch for irresponsible legislators who imagine that their malfeasance can always be fixed by the federal judiciary. Congress demeans itself when it acts irresponsibly, the majority opinion suggested, and such irresponsibility is one factor in the evolution of an imperial judiciary—an aberration that the chief justice seems to regret, to his credit.

The deepest of the “deeper truths” that one might find in Chief Justice Roberts’s opinion is that America’s success in forming a more perfect union, providing for the general welfare, and ensuring the blessings of liberty to our posterity ultimately rests on the strength of American political culture. And here, the sensus plenior of the Roberts opinion intersects with the social doctrine of Pope John Paul II, especially in the 1991 encyclical Centesimus Annus. Democracy, the Polish pontiff taught, is not a machine that can run by itself. It requires a critical mass of democrats—men and women who have internalized the habits of mind and heart that make responsible self-governance possible—to make democracy work. Beneath the functions of democratic government lies the character of a people. And if the machinery has become dysfunctional, then it is time for the people to examine their conscience about the ways in which they are living their freedom: nobly or basely, selfishly or philanthropically, responsibly or dependently?

The crisis of 21st-century European democracy—the dysfunctionality of legislatures, bureaucracies, and public services; the demise of any notion of the common good; the inability to take diff
icult decisions; the consequent rule by technocratic elites under a thin democratic veneer—is on full display these days in the Italy I left just as the Court was handing down the Obamacare decision. And of course that crisis has a lot to do with the fiscal impossibilities of the kind of social-welfare state that Obamacare seeks to replicate. But in the final analysis, Europe’s democracy deficit is the result of a democratic culture deficit: An overbearing social-welfare state erodes essential democratic habits of personal and political responsibility and typically does so in the name of decency and harmony, neither of which it fosters.

Both the text and the sensus plenior of the majority opinion in National Federation of Independent Business v. Sebelius raise these questions of democratic culture, democratic character, and democratic responsibility in a challenging and unavoidable way. Chief Justice Roberts does not, it seems, wish the Court to serve any longer as a kind of judicial nanny who cleans up messes created by refractory children. “Members of this Court are vested with the authority to interpret the law,” he writes. “We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” And in case both the Congress and the citizenry missed that point, it recurs at the very end of the majority opinion: “The Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

There has been a tacit sense, these past few years, that the choice before the American people in November 2012 is a choice between the path taken by a dying Europe and a different path to 21st-century societies of freedom and justice. That tacit sense of what is at stake on November 6, in terms of both the presidential and the congressional contests, is made explicit by the sensus plenior of the Roberts opinion. My constitutional and legal betters convince me that the chief justice may well have gotten it wrong on the constitutionality of the individual mandate. But he seems to have gotten many of the larger questions right. In doing so, he has made it unmistakably clear that if the American people think that Obamacare—its vast expansion of governmental power, its threat to the integrity of the healing professions, the manifest dangers it poses to religious freedom, liberty, and the right to life—is bad public policy, they have it in their power to do something about it, as mature citizens of a mature democracy.

And behind the power to do so lies the responsibility to do so.

George Weigel is Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.

Comments are closed.