Not really, certainly not to the defenders of Obamacare.
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Focusing on the intended meaning of constitutional provisions faces obvious obstacles, but compare that to allowing judges to amend the nation’s fundamental law in the name of the right social movement pushing the right bill at the right time. The mind boggles at the latter as a standard for anything, let alone for protecting people’s fundamental liberties.
“Originalists” of varying stripes have tended to criticize judicial “activism,” but activism is not the problem. Lack of fidelity to the Constitution is the problem.
The Founders, as well as those involved in the ratification and amendment struggles, wanted to limit the powers of government. To be true to that objective judges have an obligation to act to enforce the Constitution. This explains the apparent contradiction cited by Politico columnist Michael Kinsley: how can Republican legislators advocate that the courts turn activist and strike down Obamacare?
However, as noted by James Antle in the Spectator, “the notion that the Constitution imposed substantive, rather than merely procedural, limitations on that government was for a long time fairly uncontroversial.” Even the modern Supreme Court has recognized limits to the Commerce Clause, stating bluntly that the justices were not ready to accord the national government unlimited “police power.”
Although expansive, the Commerce Clause has never been used to reach inactivity. Dahlia Lithwick of Slate accused opponents of Obamacare of pursuing “a rather radical rewriting of the Constitution,” but that is what liberal jurists have been doing for decades.
The Constitution empowers Congress to regulate commerce “among the several states,” and no court has ever held that merely living in one of those states is itself a form of commerce “among the several states.” If the federal government can force Americans to engage in commerce by buying health insurance, it can insist that they purchase automobiles from bankrupt manufacturers, acquire securities from failing Wall Street concerns, become farmers by growing food in their yards, and exercise three times a week. That is, upholding this power would obliterate the constitutional scheme of limited government. There would be no need for Article 1, Section 8, other than one clause allowing Congress to regulate commerce.
If the American people want a national government of unlimited power, they can have one. But to do so they should amend the Constitution, rather than rely on an ephemeral majority of high court justices. And if they don’t want one, it should not be imposed on them by judges acting on personal whim. If the Constitution is still relevant to Washington governance, jurists have an obligation to act to invalidate Obamacare.
GIVEN THE TENDENCY of judges to ignore law and constitution, one helpful fix would be to end life tenure for justices. Intended to protect judicial independence, this provision creates a dangerous and disconnected elite that will always be tempted to overstep its role. Better to appoint judges for a term, perhaps ten years. Rotation in office would still insulate jurists from political passions while limiting the concentration and abuse of power by the judiciary. Errant jurists would naturally leave the bench rather than forever wield unconstrained power — becoming liberal saints along the way.
The Constitution must mean something to have any effect. One approach would be to amend the document by sprinkling the phrase “and we really mean it” after the many provisions gutted by aggressively statist judges. Better would be to insist that judges enforce the document as written, meaning the general political compromise when specific provisions were passed. If constitutional protections are but formless inkblots, then no American is truly safe from his or her government.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
Was the President done in by the economy, or by the politics of the economy?