Head Strong: Reading the judges on health care: What is, and isn't, clear
It was Adams who in 1780 sought to instill a sense of separate yet balanced power in the Massachusetts Constitution - "a government of laws and not of men," he wrote.
Cohn had other ideas. During his life, legend has it, the famed lawyer (who was ultimately disbarred before his death), was fond of saying, "I don't care what the law is, just tell me who the judge is."
On the subject of the national health-care law, the answer to Cohn's question would be: Anthony Kennedy. The case appears headed for his resolution once it arrives in the Supreme Court.
So much for the belief that the law is applied when a member of the bench dusts off the Constitution and looks up an answer.
Thus far, only federal trial courts have reviewed the law. The next challenges will go to the U.S. Courts of Appeals, and then to the U.S. Supreme Court. And unfortunately, most observers, including me, think we can accurately predict how eight of the nine justices will rule.
That health care is constitutional: Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
That health care is unconstitutional: Justices Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito. Which leaves Justice Kennedy.
This is the government of "men" now charged with interpreting the law, which in this case involves Article I, Section 8, Clause 3: the Commerce Clause. It gives Congress the power to regulate commerce "among the several States."
Since the New Deal, the Supreme Court has defined commerce very broadly to include anything that could have any effect on interstate commerce. That broad reading empowers Congress to make it illegal for your 8-year-old to operate a homemade lemonade stand and refuse to sell lemonade to racial minorities. Why? The water, sugar, fruit juice, and revenue - even in tiny amounts - could have an effect on interstate commerce. That same thinking now makes it a federal crime to commit an act of kidnapping across state lines. Or to engage in Internet crimes. The only question to be asked by a court in reviewing a law predicated on the Commerce Clause is whether it could have an effect on interstate commerce.
So the issue here is whether the refusal of someone to participate in national health care could have an impact on interstate commerce. To which proponents would say yes, because when you don't participate, you are affecting the commerce embodied in the health-care system, however slightly, across state lines.
Judge Vinson found that the law was not properly grounded in the Commerce Clause because, he said, it was not aimed at "economic activity," but rather "inactivity," referring to one's decision not to buy insurance.
Those challenging the health-care law say that the Commerce Clause does not authorize Congress to force Americans to buy health insurance where authority extends only to activities that substantially affect interstate commerce. They say the clause does not give the government power to make you do something.
Proponents respond that when you choose not to obtain health insurance, you are making an active decision that shifts your burden to others. In other words, that there is action in inaction. And, proponents argue that the government already makes you do things, like buy car insurance.
To which critics reply, No one forces you to drive a car.
Proponents will finally say that in the alternative of reliance on the Commerce Clause, we would have 50 sovereign systems of government, not a United States.
Round and round it goes, without a crystal-clear answer in the law. Language is necessarily ambiguous. Hence the influence of interpretation. And given the recent partisan divide in the court, it is easy to see this one decided by a 5-4 split. Just like Bush v. Gore. And last year's important gun case (District of Columbia v. Heller) and the campaign-finance case (Citizens United v. Federal Election Commission).
Roy Cohn was right. It's not just what the law says. It's who is reading it.
Contact Michael Smerconish