Tom Bombadil and the Narcissism of the Federal Judiciary

Have you ever been on a journey and lost your way in the forest, thinking you were going in one direction but finding eventually that you had gone in the wrong direction? As I read the Order of the Hon. George Caram Steeh in Thomas More Law Center v. Barack Hussein Obama, I could not help but think of Frodo Baggins in the classic Tolkien tale The Fellowship of the Ring and his companions Sam, Merry and Pippin lost in the Barrow-Downs. If you know the story, you know that Frodo and company head off from the Shire, running from the danger of dark riders, to the safe haven of Rivendell and the elves. On their journey they receive the help and blessing of the ancient and wise Tom Bombadil. After being refreshed by Tom’s hospitality, Tom set the Hobbits on a high place from whence they could see a great deal of the journey before them. Unfortunately, during their decent they come to the Barrow-Downs where a fog overtakes them and they lose their way. It is only after Tom Bombadil hears their cries and rescues for a second time that they are set right on their path again.

The analogy here is not to the order of the judge. The order is a classic example of constitutional jurisprudence. The order identifies the key components of the arguments of the parties and the key elements of the law that is being challenged. It then summarizes and explains the Supreme Court precedence on the issue at hand and applies the law to the facts. The order concludes that the Health Care Reform Act is constitutional. The plaintiff Thomas More Law Center claimed that the Individual Mandate, which provides that individual citizens must obtain a minimum coverage of health insurance or be subject to a penalty, is unconstitutional because it regulates a person’s mere existence or in the alternative his inactivity. Plaintiff claimed that this is not within the purview of the Commerce Clause of the U.S. Constitution. In the order, the court, consistent with Supreme Court precedent, sets forth the three alternative tests for determining whether the activity is within the realm of Congress’ scope of authority for regulating interstate commerce. The court determined that it is the third alternative that is at issue in this case, “those [local] activities that substantially affect interstate commerce.” After almost four pages of discourse on the limits the Supreme Court places on congress regarding how substantial the affect must be for the local activity to give Congress the authority to regulate it, the Court concludes that the failure to purchase medical insurance has a significant impact on interstate commerce. It does so for two reasons: first, the economic decisions that the Act regulates have direct and substantial impact on the interstate health care market and, second, the minimum coverage requirement is essential to the larger regulation of the interstate business of health insurance.

The analogy is to the state of our constitutional jurisprudence. In this twenty page order, an order which addresses the constitutionality of a massive federal takeover of the healthcare industry and subjugation of all citizens to the obligation of the Individual Mandate, the U.S. Constitution is not quoted once. Our constitutional jurisprudence has become so encrusted with court created irrelevancies that it has lost track of the real questions. The simple question, does the U.S. Congress have authority to regulate has become a narcissistic preoccupation which has distracted the court from fulfilling its real purpose. The court has become lost in the fog at Barrow-Downs.

Every law student learns from the case of Marbury v. Madison that the Supreme Court is the final arbiter of the meaning of the U.S. Constitution. The Court, true to this teaching, observed that, “The Supreme Court has expanded the reach of the Commerce Clause to reach purely local, non-commercial activity, simply because it is an integral part of a broader statutory scheme that permissibly regulates interstate commerce.” The focus has now become what the Supreme Court now permits and not what the Constitution provides. Every lower court looks to the high court and to itself to determine now what they permit. The fog of narcissism grows. If this order is permitted to stand, the fog will continue to grow.

It is time for a Tom Bombadil to disburse this narcissistic fog. The U.S. Constitution was and is a compact of the states. This compact created the federal government to serve the states. It did not recognize the federal government as the supreme arbiter. Rather, in the Declaration of Independence, a foundational precursor to the Constitution, the states recognized God as the supreme arbiter. Marbury v. Madison must be placed within this context. Marbury addressed a dispute regarding the internal operations of the federal government, whether a federal magistrate would be seated according to the appointment of the President. The court simply recognized the practical reality that in its position as the declarer of rights in the federal system it must be the final arbiter within that system. It did not address the extent to which the federal government may restrict the liberties of or impose obligations on the states or the people. The federal servant has no capability to judge its delegated authority.

If we are to disburse this narcissistic fog enveloping the nation, we must reevaluate the purposes of the U.S. Constitution. Jesus said, "Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cumin, and have neglected the weightier matters of the law: justice and mercy and faithfulness. These you ought to have done, without neglecting the others.” The courts must take their eyes off of themselves and their tediousness in figuring out the riddles of what fact patterns meet what test in the Supreme Court’s criteria de jure for expanding the reach of the Commerce Clause and the federal government. They must look to the purpose of the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The federal government and particularly the jurisdiction of the federal court system exist to insure domestic Tranquility, to provide for the common defense, and to secure the Blessing of Liberty to ourselves and our Posterity. And, no, promoting the general welfare cannot be taken out of the context of these other purposes. Promoting the general welfare must be consistent with our liberty, tranquility and defense, not a justification for burdening the liberty, i.e. the taxing, of some for the benefit of others.

Where does Missouri go from here? The citizens of Missouri have spoken on the law of this state as it relates to the federal health care tyranny. The law of the state is that there shall be no Individual Mandate. The challenge for the Missouri judiciary is to cast off the narcissism of the federal judiciary. The challenge for the Missouri judiciary is to give the Tenth Amendment of the U.S. Constitution its rightful place again in the compact the states have made with each other and to secure the liberty of its citizens. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Perhaps the Missouri judiciary will fill the role of Tom Bombadil.