The Logic of Justice Roberts

Roderick M. Chisholm (1916-1999) taught philosophy at Brown University for many years.  His methods turn out to be relevant to the recent Supreme Court decision on the constitutionality of Obamacare, clearing the air and leading to a productive response. 

Chisholm's work dispels the popular notion that obscurity comes with the territory in philosophy.  If his books and articles are difficult, which they can be, it's not because one can't tell what's going on or why it matters.  Chisholm would spell everything out in great detail, which required patience and discipline to work through.

In class he was the same.  He would write an argument on the blackboard in chalk, drawing each letter slowly and carefully and then stand aside to wait for comments, eraser at the ready.  His logic was impeccable so the only thing left if you didn't accept his conclusion was to question one or more premises. 

One day a student evidently unaware of this rule raised his hand and made a five-minute speech.  The rest of us chuckled but Chisholm waited patiently until the fellow was done, occasionally fiddling with the chalk.  When the guy finally ran out of steam, Chisholm replied as he pointed at the blackboard, "Which premise are you denying?"

Accordingly, I will set out in proper form an argument that captures what I understand to be Supreme Court Chief Justice John Roberts' reasoning in granting the constitutionality of the Patient Protection and Affordable Care Act (Obamacare) and then ask those who don't accept this ruling, "Which premise are you denying?"

Argument A

1. The mandate component of Obamacare (MCO) is consistent with the Constitution if and only if either (a) MCO is consistent with the Commerce Clause of the Constitution, or (b) MCO is consistent with constitutionally-granted legislative powers of taxation.

2. MCO is not consistent with the Commerce Clause of the Constitution.

3. MCO is consistent with constitutionally-granted legislative powers of taxation.


4. MCO is consistent with the Constitution.

Conservatives thought the High Court would reject MCO because of inconsistency with the Commerce Clause and that the court would base its ruling on the following argument:

Argument B

1*. MCO is consistent with the Constitution only if MCO is consistent with the Commerce Clause of the Constitution.

2. MCO is not consistent with the Commerce Clause of the Constitution.


5. MCO is not consistent with the Constitution.

That is, conservatives only worried weather the court would grant premise 2 and felt certain Obamacare would go down in flames once that happened.  Consternation in the ranks followed when the court granted 2 but upheld Obamacare. 

How could that have happened?

A possibility was overlooked: that the court would rule based on the more complex Argument A.  After all, President Obama and Congressional Democrats had assured America that MCO was not a tax.  It was a bit early back in March of 2010 to suspect "lies well steeled with weighty arguments," as Shakespeare put it in Richard III. 

How could the Supreme Court rule that MCO was a tax?

One answer is that the High Court has the responsibility of leaving no stone unturned in assessing constitutionality.  Judge Roberts had to make sure that all relevant elements of the Constitution were taken into consideration, exercising the due diligence required of his high office -- if Warren Burger had done that, the mess that is Roe v. Wade would not have become the law of the land.  Accordingly, a sound argument had to be presented that exhausted available alternatives, especially in light of the fact that the Solicitor General pitched MCO as a tax when he appeared before the court.

The court could not have used Argument B because premise 1* can be rejected on grounds that consistency with the Constitution can hinge on other relevant factors, of which the legislative power of taxation is a prominent one and, as it happens, the only other factor relevant to this case.  Because this premise is false, Argument B is unsound.

The question at this point is why Chief Justice Roberts didn't make life easier for himself by reasoning as follows instead of Argument A:

Argument C

1**. If MCO is consistent with constitutionally-granted legislative powers of taxation, then MCO is consistent with the Constitution.

3. MCO is consistent with constitutionally-granted legislative powers of taxation.


4. MCO is consistent with the Constitution.

My hunch is that Judge Roberts didn't want to make an exit without nailing the issue of consistency with the Commerce Clause, which previous courts had left hanging for a long time and was a thorn in the side of conservative thought.  He saw a golden opportunity to set legal precedent for generations to come, and took it.  I imagine that his insistence on Argument A over Argument C met with resistance from liberal colleagues opposed to having to rule on the Commerce Clause issue.  Evidently, the Chief Justice got his way.  We may find out one day how he pulled it off.

Because Argument A is logically correct, opponents who find MCO repulsive must reject one or more premises.  Premise 1 is unassailable because there do not seem to be other elements of the Constitution that are relevant to deciding the constitutionality of MCO.  Opponents would not question premise 2, agreeing with the reasons the Chief Justice gave as to why MCO is not consistent with the Commerce Clause. 

That leaves premise 3, consistency with constitutionally-granted legislative powers of taxation.  Judge Roberts has indicated that the ballot box is the way to decide this matter and conservatives should agree.  There will also be an opportunity this fall to vote in a new president who will have four years to replace at least one of the liberal judges on the court and get the nomination through a possibly GOP-controlled Senate.  This will give the Chief Justice more maneuvering room. 

But more than that.  When they meet after the Independence Day recess to repeal ObamaCare, House Republicans will have a golden opportunity of their own.  They can take the high road and include language in the repeal bill that will make it clear how constitutionally-granted powers of taxation must be restricted to make sure that MCO and similar anti-democratic monstrosities do not rear their ugly heads ever again. 

Gratitude is owed to Chief Justice Roberts for creating an opportunity to restore fiscal sanity and limit a power that lies at the very foundation of our republic. 

Arnold Cusmariu received a Ph.D. in philosophy from Brown University with a dissertation on the problem of universals written under Ernest Sosa, James Van Cleve, and Roderick M. Chisholm.