In Missouri, Tuesday, voters will go to the polls in a largely symbolic effort to provide some legal basis to nullify the controversial provisions in March’s healthcare reform law requiring individuals to purchase health insurance or pay a fine.
Missouri is not the only state to back rhetorical opposition to healthcare reform with a court challenge. On Monday, a federal judge in Virginia allowed a challenge to healthcare reform to go forward.
In a controversial legal doppelganger, on Monday Virginia’s Attorney General Ken Cuccinelli II issued a legal opinion that authorizes police to check the immigration status of individuals stopped by police for any reason. This opinion echoes the disputed Arizona law, the most controversial provisions of which were recently struck down by a federal judge. Arizona has already issued an appeal.
Do these court battles and referenda include an ideological component? Certainly. However, they cannot simply be dismissed as a Republican tantrum against the legislative will of a Democrat-dominated Washington. There are real precedents being set that are clearly divisive. There are two ways to achieve conciliation and consensus on these issues: subject them to a legislative initiative like a referendum or settle them in the courts. The latter, which does not yield consensus, is the method being employed at the moment.
At times, the judiciary is forced to make decisions on fundamental revisions of the social compact. Often the legislative process has broken down or a single law is so contradictory to other state or federal laws that only the highest court can break the stalemate. This is a suboptimal scenario; it is always preferable that such controversial decisions be accepted or rejected by representatives or by plebiscite in order to have a lasting consensus and avoid ongoing conflict.
The controversial clauses of both Arizona’s immigration law and healthcare reform are expected to eventually make their way to the Supreme Court. This is the process that was envisioned by the founders and, at times, it is a necessary check on the will of state and federal legislators that may have overreached in their desire to make popular, sweeping revisions of existing law. However, judicial remedies to legislative problems set up long, divisive fights. A Supreme Court decision rarely ends the debate.
Which brings us back to Missouri. The Republican base is energized by the prospect of being able to deliver an up-or-down vote on healthcare reform. This will give them the opportunity to deliver a referendum on the Obama Administration’s signature legislative initiative ahead of November. Democrats that support healthcare reform wonder if this referendum is necessary; the Civil War having officially settled the question of nullification and federal legal supremacy. Neither will be satisfied by any court’s decision on the matter.
American history is dotted with controversial decisions that have attempted to resolve contentious issues that pitted states against each other. Many cases that SCOTUS has decided required further resolution in the public mind, including Dred Scott v. Sandford (1857), which required redress in the form of the Civil War; Plessey v. Ferguson (1896), which resulted in decades of debate finally settled by the Civil Rights Act; and Roe v. Wade (1973), which is still unresolved in the public mind.
These social battles are waged in the zeitgeist of the national consciousness over generations. While they can be pressing and divisive, they are not usually short lived and their resolution is never through the courts. They are eventually resolved where true national reconciliation occurs, in the state and national legislatures. These two battles will eventually be waged there as well.
While it is unclear what the results of these court battles will be, the outcome will not be national consensus. That will come later. What form that reconciliation will take is unclear.
Noah Rothman is the online editor at C&E. Email him at email@example.com