For most of the last century, liberals have preached that the Constitution is a living document that needs to be interpreted and re-interpreted to fit the needs of the times. In the name of this legal faith they have championed a vast expansion of government power as well as the enumeration of various rights that are nowhere to be found in the actual text of the document. Generations of liberal activist judges have consistently thwarted the will of both the legislative and executive branches of government without a blush as they imposed their own ideas about every conceivable issue on the country. In doing so they changed the way we think about government and established its presence in our lives in ways that the founders would have thought unthinkable.
But now that there is a possibility that a conservative majority on the Supreme Court might rule ObamaCare unconstitutional, liberal thinkers are doing a 180-degree turn. In the wake of yesterday’s Supreme Court hearing on the case in which it was apparent that several justices were skeptical about the government’s argument that it could force citizens to engage in commerce which it could then regulate, the editorial writers at the New York Times were up in arms at the mere notion that the court would have the temerity to overturn a bill passed by Congress. As the Times put it, “the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.” Now that the shoe is on the other foot, liberals are shocked at the notion of judges stepping in to teach the legislature a lesson.
The irony of this outrage is clearly lost on the Times and the rest of President Obama’s cheering section in the mainstream press. The Times believes if the court overturns ObamaCare it will be a “willful rejection” of “established constitutional principles that have been upheld for generations.”
In a sense that’s true. For more than a century, liberal judges trashed the original meaning of the Commerce Clause and twisted it to allow the federal government the right to intervene in virtually any activity that struck its fancy. The individual mandate is an unprecedented expansion of the “principle” of untrammeled federal power. But it certainly is well within the scope of previous decisions that created the leviathan in Washington that is sinking the nation in debt.
But the idea that all precedents must be respected is not one that any serious legal theorist can support. The passage of ObamaCare is one such instance. The idea that the court must “hew to established law” would have prevented every famous liberal victory in which the expansion of government power was justified. Times change and the law sometimes must change with it. If the court was able to justify the expansion of the scope of Washington’s power in the 20th century in order to do what a majority of judges deemed to be good, the same principle can allow the courts to step in and say that the current situation demands that someone establish clear limits on federal power.
The genius of our constitutional system is that the checks and balances that the three braches of government can exercise serve to prevent the aggregation of too much power in one at the expense of the people. The truth is the court has always crafted the law to “argue the merits of the bill” as Justice Breyer said of those arguing against ObamaCare. In the past, this worked in favor of liberal goals. Today, it works against them.
We don’t know whether the panic on the left about the court’s inclinations on this case is justified. We certainly hope so. But the idea that the Supreme Court must forebear from striking down this unconstitutional power grab by Washington because to do so would transgress the limits of its power is not a serious argument. Especially when it comes from those who have long held that the court can exercise any authority it likes so long as it is promoting liberal objectives.
It is interesting how the Times focuses in on the "brocolli" argument made by Scalia. The Times and other argue that the key is cost-shifting: mandating health insurance helps mitigate cost shifting, but mandating brocolli eathing doesn't. But the problem is, it does–if you get the "joke" Scalia is making. "Eating your brocolli" is another way of saying "Be Healthy"–and being healthy certainly impacts cost shifting. Scalia is raising a profound challenge to ObamaCare: Can the Gov't order you to jog, keep your cholesterol low and yes, eat your veggies, if doing so would miitigate costs to the "health care system?'' Of course, if everyone were the model of perfect health, it would substantially lower costs, so the Times is dead wrong: the "eat your brocolli" argument is all about cost shifting. The question is: Do the Times and other liberals really want an Gov't that can legally force you to eat, drink and live your life in a way that is considered to be healthy? They do.
Thanks BDZ at least someone out there makes a lot of sense. Thank God for Justice Scalia and Kennedy who still believe that the Government of the United States, its authority is defined and limited by the CONSTITUTION. a lot of Liberals are no longer adhering to our Constitution. One day we will wake up and we will no longer be a Republic but a SOCIALIST GOVERNMENT WHICH IS COMMUNISM, IF WE LET THE LIBERALS RUN THIS COUNTRY. WAKE UP PEOPLE, BEFORE YOU ARE TOLD WHAT TO EAT AND WHERE TO GO…….
In the proceedings, Virrelli missed a chance to give a limitation to the commerce clause though, that would have upheld enumerated powers. He should have said that burial insurance can be mandated by the government and broccoli cannot. It would have been the difference between saying there is a hypothetical line and a bad line. The latter would have been tangible. Apparently, the erosion of individual liberty doesn't have to be. Everyone has to believe that Congress always arrives at the right decisions. n
Well, the Liberals feel on safe ground – to them, at least they are not trying to defend the USA CONSTITUTION or anything Treasonous in their eyes like THAT!
is the TIMES saying that Dred Scott ought not have been overturned? Is that their argument?r nr nJust checking.
I guess they think that the Defense of Marriage Act is hotsy totsy after all. n nMaroons.
The founders were not gods. They thought slavery was legal. Repeatedly asking what the founders thought is a religious exercise, not a practical one.
They may have thought it legal; they didn't think it moral (except for the slave-owning Southerners). n nRepeatedly asking what the Founders thought is the best way to decide issues about how the country should be run. They had the weight of history, and of scores of heavy thinkers to back them up – they were all well-read in the classics and the philosophers and politicians up to that time. They knew what worked and what didn't – from ancient Greece up to the 18th Century. n nNot just the Constitution, but the Federalist Papers should be required reading for every incoming Congressman. If they haven't read those already, our educational system is to blame.
But you can take a look and ask what the Constitution, the law of the land last time we looked, actually says, with the aid of prior precedent, stare decis, and the rest. And there sure is a lot of checks-and-balance enumerated powers stuff in there. The Congress is not a plenipotentiary Parliament.
The trail of checks and balances ends at the Supreme Court. That's the way the Framers intended it. If the Court rules the "wrong way", it's up to Congress to write new law. n nRoosevelt tried to pack the Court when he was in – that failed.
Jefferson thought that a Supreme Court that acted like it has for the last century should be ignored when they took it on themselves to find new "rights" not enumerated in the Constitution. You can read his views in his letter to Pres Adams wife who asked him the question about the potential unbridled power of the court.
Re: "For more than a century, liberal judges trashed the original meaning of the Commerce Clause and twisted it to allow the federal government the right to intervene in virtually any activity that struck its fancy. The individual mandate is an unprecedented expansion of the “principle” of untrammeled federal power." n nFirstly, one could make a great drinking game out of how often conservatives use the word "unprecedented" in this debate. So what? Many laws if not most laws in our history have been enacted without precedent. n nBut, more important, the author's claim that modern liberal judges have distorted the original meaning of the commerce clause is absurd! In Gibbons v. Ogden (1824), (Founder) Chief Justice John Marshall wrote, "What is this power [that the Commerce Clause grants Congress]?It's the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to itsufeff utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." n nSo, the original meaning of the commerce clause could not be clearer. The power of Congress to regulate all interstate commerce in any way it sees fit is WITHOUT LIMIT, unless expressly forbidden by the constitution. To claim otherwise, as this author does, is the real trashing of the original meaning!
"Many laws if not most laws in our history have been enacted without precedent. " n nThe question is not about enacting laws, rather about ruling on them. The word "precedent" in this context refers to a court ruling. n nWhile we may agree that there are no restrictions on the commerce clause, you'd have to argue hard and fast that "commerce" means that the government can force us to buy something, whether we need it or not, whether we want it or not. Then there's that last clause: "no limitations other than are prescribed in the Constitution." n nAs far as "modern liberal judges" go, they gave the government the right to seize private property in Kelo v. New London..
And who was the ONLY candidate to propose 15 year reviews for the royal court? NEWT… nIF the libs get another 2 kook socialist utopians on the SCOTUS… nup will be down and down will be up… ngravity will be unconstitutional and will be anything local and state gov-meants do w/o permission from the federal monster… nOz will be normalized…
Re: "For more than a century, liberal judges trashed the original meaning of the Commerce Clause and twisted it to allow the federal government the right to intervene in virtually any activity that struck its fancy. The individual mandate is an unprecedented expansion of the “principle” of untrammeled federal power." n nFirstly, one could make a great drinking game out of how often conservatives use the word "unprecedented" in this debate. So what? Many laws if not most laws in our history have been enacted without precedent. n nBut, more importantly, Mr. Tobin's claim that modern liberal judges have distorted the original meaning of the commerce clause is absurd! In Gibbons v. Ogden (1824), (Founder) Chief Justice John Marshall wrote, "What is this power [that the Commerce Clause grants Congress]? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." n nSo, the original meaning of the commerce clause could not be clearer. The power of Congress to regulate all interstate commerce in any way it sees fit is WITHOUT LIMIT, unless expressly forbidden by the constitution. To claim otherwise, as Mr. Tobin does, is the real trashing of the original meaning! n
In other words, any argument liberals make is only valid when it's for their benefit. Any other time, it's "an overreach of power" or something. Heads we win, tails you lose. Yeah, I find that very convincing.