Chief Justice Roberts' Marbury Moment

If the Supreme Court declares the Affordable Care Act unconstitutional, almost assuredly John Glover Roberts, Jr., the chief justice, will write the majority opinion. 

Roberts' choice of words will weigh heavily on America's future.  More than just resolving a politically charged case, his opinion could determine the extent to which our republic is and remains a nation under law.  He must write a masterpiece not only for the present constitutional dilemma, but for the ages.

ObamaCare's constitutionality will be decided nearly two and one-tenth centuries after Marbury v. Madison, the landmark case best-known for establishing the doctrine of judicial review.  Just as practically no one today other than constitutional scholars know the underlying legal dispute in Marbury v. Madison, few people a hundred years from now will know, much less care, about individual mandates or many other aspects of ObamaCare.

What will matter is something grander about the Constitution, and the role of government under the rule of law.

Roberts appears to be perfectly suited for the task.  A Harvard Law School graduate, he clerked for the late Justice William Rehnquist, and then he was in the Justice Department before moving to private practice as an appellate lawyer.

With impeccable establishment credentials and a consummate Washington insider background, Roberts nevertheless seems to grasp the limited government principles and traditions of our uniquely American law.  He's an outsider's insider -- a humble everyman in robes.

In a 2006 interview with PBS, Roberts discussed the most revolutionary aspect of the American Constitution, which is that it is the law over government and not merely a political document melded at will by political leaders.  Chief Justice John Marshall's landmark opinion in Marbury v. Madison, Roberts notes, "says, what is the Constitution?  It's law.  It's law that the people have established to control this new government."

In this regard, the ObamaCare case is very much about more than just ObamaCare.  It is about the extent to which the Constitution is binding as law that controls government, and what the Supreme Court will do to enforce that law on government.

Thomas Paine wrote, "A constitution is not an act of government, but of the people constituting a government, and a government without a constitution is power without right."  Political thinker Sir Kenneth C. Wheare referred to a constitution as "the collection of rules which establish or govern the government."

In Marbury v. Madison, Marshall called the United States Constitution our paramount law -- so much so that laws passed by the people's representatives are void if repugnant to that fundamental, supreme law.

Roberts' task is to articulate how the Constitution is law that binds -- that governs -- government itself.  A judicial traditionalist, Roberts understands the importance of how Supreme Court decisions have helped interpret the Constitution as law when there is ambiguity.

Roberts has also stood firm when laws and judicial precedent have gone too far astray from the Constitution's meaning and purpose.  In Wisconsin Right to Life v. Federal Election Commission, he wrote, "Enough is enough," finishing with "as is often the case in this Court's First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: 'Congress shall make no law . . . abridging the freedom of speech.' The Framers' actual words put these cases in proper perspective."

The public record is clear that those responsible for passing ObamaCare sometimes displayed disregard for -- even an unhealthy ignorance of -- the Constitution as law binding government.  Some in government now even display a level of disdain or contempt for the rule of law.

The chief justice assuredly sees the many degradations the Constitution is suffering under the Obama administration.  The fate of more than ObamaCare is at stake.  We'll see if John Roberts will help restore the rule of law over government.

Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.