Articles are available for reprint as long as the author is acknowledged: Domenick J. Maglio Ph.D.

Thursday, July 26, 2012


By Domenick J. Maglio PhD  Traditional Realist

Chief Justice John Roberts took the path of least resistance when his swing vote ruled that Obamacare was constitutional. He argued that it was a tax not a penalty that would force Americans to purchase this service against their will. This line of reasoning means every traffic violation is not a penalty (a punishment for doing something wrong) but a tax. All Americans will be less free as anything the government wants you to do, they can tax you if you do not want to do it. This is un-American.

His ruling attempts to thread the needle. He stated, “The federal government does not have the power to order people to buy health insurance. Then he turns around and says, “The federal government does have the power to impose a tax on those without health insurance.” Certainly a substantial tax is a means to force citizens to do something against their will.

In order to make the decision palatable, he stated if the American people did not like the decision that affects one-sixth of the economy they could vote this administration out of office. This approach could be seen as an appeasement of both sides. The progressives keep a big government socialist program while the limited government conservatives have another opportunity to reverse the direction of the USA by the legislative process in this fall's election.

The American people might repudiate Obamacare in the 2012 presidential election. However, on this crucial issue Chief Justice Roberts appears to make his decision based on proving his court is not favoring one party over another. This tactic may increase the prestige of the Supreme Court with political elites.

This decision might be good politics for the Supreme Court but it is a dereliction of its lawful duty of making a decision based on the Constitution not some flimsy and convoluted argument that would win favor in Washington circles. By leaving the people the option of overturning this piece of legislation the Supreme Court is still abdicating its responsibility to rule whether a law conforms to the dictates of the Constitution.

The mission of the court is to insure the Constitution is being followed. The Supreme Court is supposed to be the "gatekeeper" of the Constitution, not an institution that should be concerned about pleasing ruling class politicians or the citizens. Either it is constitutional or not. The federal government’s powers are specifically and concisely spelled out for the most part in Article I Section 8 of the Constitution. These enumerated powers should be the focus of the court.  It should not rule depending on the political implications of the way the media and progressive elites would frame this institution to the people.

When the executive or congressional branch of government supersedes its enumerated power the Supreme Court is obliged to tell either branch it is unconstitutional to do so. The Supreme Court does not have the prerogative to avoid its duty by hiding behind the mantle of judicial restraint or misuse of the Commerce Clause or the Supremacy Clause to transform the United States from a Federal Republic to a totalitarian one.

Our founding fathers chose not to make the highest court in the land politically responsive to the public. In fact they gave Supreme Court judges a lifetime appointment to insulate them from public opinion so as not to make this branch of government responsive to it.   

Chief Justice Roberts has tainted his court's reputation for upholding the Constitution although
this arbitrary ruling by Justice Roberts might have done a great service. His disconcerting ruling has inspired citizens to better understand the brilliance of our founders in establishing the Tenth Amendment.  The 10th Amendment says, “The powers not delegated to the United States nor prohibited by it to the states, are reserved to the states respectfully or to the people.”  Thomas Jefferson argued the states had the power to determine the constitutionality of federal law under the Tenth Amendment.

The founders realized the federal Supreme Court could use its rulings to enhance its power and weaken state sovereignty. It was the independent original 13 states that chose to give up some of their power to create a federation of states to unite into the United States of America. The Constitution limits the federal government to protect state and individual rights.

The Tenth Amendment is a means of the states maintaining their viability as a free entity that would not be absorbed by a power grabbing central government.  When the Supreme Court does not do its job of upholding the Constitution of the United States of America, the Tenth Amendment allows the power of the individual states to act as the ultimate check and balance to keep our freedom under our sacred document.

When the federal government imposes an unconstitutional law or mandate on the states, the states have a right to nullify them. These states can write a resolution not to comply with any federal law or mandate they deem unconstitutional. This process is called “nullification.”

Thank you, Chief Justice Roberts for helping us realize the genius of our founders in honing in a potentially expansive Supreme Court through the process of nullification.

Dr. Maglio is an author and owner/director of Wider Horizons School, a college prep program. You can visit Dr. Maglio at


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