The Life of the Law

After enduring the burlesque that was the impeachment of a Philippine Supreme Court Chief Justice, we are treated to the drama of his American counterpart rising to greatness.

US Supreme Court Chief Justice John Roberts late last week handed down the deciding opinion that upheld the constitutionality of the Affordable Health Care Act, better known by both detractors and supporters as Obamacare. Four justices known to be liberals voted with the Chief Justice. Three conservatives and one who is normally the swing vote dissented.

In casting the swing vote himself, Chief Justice Roberts made certain that some 50 million Americans who enjoy no health insurance would now be covered. Without that vote, the United States would remain the only industrialized democracy that does not provide health insurance coverage to its people. Behind this neglect is a morbid fear of socialism. Many Americans would rather see health care left to the tender mercies of the market.

By voting against his own conservative bloc, the Chief Justice rescued the Court from a deepening reputation of being just another political arena, where party affiliations matter more than the majesty of the law.

The Republican state governors who sued against Obamacare contended that this law is unconstitutional because its provision on “individual mandate” requires citizens to buy insurance or else get fined. Congress, they argued, has no power to force citizens to buy what they do not want to buy. The Chief Justice agreed that Congress has no power to create commerce but he also pointed out that the fine is a tax and certainly Congress has the power to tax, thereby upholding the constitutionality of Obamacare.

Now why should we in far away East Asia care about Obamacare? Well, because it is wedded to the political fortunes of an American President who is less likely than his rival to tangle in a bad way with China. And because it’s about the plight of the American consumer, the unsung hero of the Asian economic miracle, and still a major factor in Asian exports. And finally because by upholding Obamacare’s constitutionality, the Roberts Court teaches us something about what law is all about.

“The life of the law,” wrote Justice Oliver Wendell Holmes Jr., “has not been logic; it has been experience.” Justice Holmes is long dead but is still regarded as the greatest legal mind in the history of English language jurisprudence.

In the Obamacare case, the experience involved is that of scores of millions of Americans who are bereft of health care of insurance. Perhaps the Chief Justice thought long and hard about the grievous social consequences of striking down Obamacare.

Perhaps another experience is involved: that of the US Supreme Court feeling the pangs of a reputation that is losing lustre after its hasty decision to gift George W. Bush with the presidency although he lost the popular vote in 2000, and after the 2010 “Citizens United” ruling that allows corporations to donate unlimited amounts to the campaigns of their preferred candidates. That ruling is now being exploited by the plutocrats of Wall Street to spend untold fortunes to ensure the defeat of President Obama in November.

Last week the Roberts Court restored the primacy of legal realism over legal formalism. This is worth noting here in Southeast Asia where the judiciary in democracies like the Philippines and Indonesia seem obsessed with procedural law. Thus in the Philippines, a tenant farmer helps himself to a few coconuts from the land he is tilling and he gets a stiff jail term. In Indonesia a boy helps himself to a police officer’s flip-flop slippers and he languishes in prison.

The law is made for the human being, not the other way around. That is the message made clear by Chief Justice Roberts.

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By Jamil Maidan Flores Posted in El Indio

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