By: Robert E. Meyer
Recently, President Obama gave an address, jawboning the Supreme Court after they heard deliberations regarding the constitutionality of the Health Care Bill. Obama’s comments in the aftermath of the arguments, was a stark revelation of his constitutional philosophy for those, who, for whatever reason, were uninformed about where he stood. Obama, apparently operating under the impression that the Solicitor General’s apologetic before the high court didn’t make a favorable impression, warned them that declaring a bill passed by Congress unconstitutional, would be “unprecedented” and extraordinary. Further, he said it would be strange, considering conservatives often talk about judicial activism. The comments of Obama so raised the ire of one appellant court judge, that he demanded the Justice Department draft a paper spelling out the administration’s position on the legal concept of judicial review by the courts. And while he has backed off of some of his original comments, it’s easy to see his true perspectives. The president failed to distinguish between the duty of judicial review by the high court, and activism in adjudication. Judicial review is a legitimate process performed by the court in determining whether a bill or policy is in fact constitutional, whereas activism is the process of inventing rights or law not apparent in the constitution, or never previously recognized as existing. Judicial review has been a legitimate function of the court since the 1803 Marbury v. Madison decision. Judicial activism is something the founders warned about from the beginning of the republic. In answering charges about judicial activism from conservatives, it has become fashionable for liberals to counterpunch with their own allegations of “conservative judicial activism.” This complaint is misplaced, because the judicial philosophies of “originalism” and “strict construction” subordinate the personal opinion of the judges to a normative interpretation of the Constitution. On the other hand, true judicial activism allows personal insights of judges to supersede traditional understandings of constitutionality. In other words, conservative judicial philosophies handcuff and curtail the autonomy of judges, while liberal judicial philosophies make the judge a de facto philosopher-king. In George Washington’s Farewell Address, paragraph 25, the issue of separation of powers in broached. “It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed…” Washington would scold Obama for his attempts to bully the court by asking them to rubber stamp what congress contentiously approved. Regarding Obama’s claim that it would be unprecedented for the court to strike down a congressional bill, there are any number of instances where this has been done before. Obama is merely pretending that he is still a law school professor, bemoaning that the Bill of Rights only expresses “negative rights,” in that it only tells us what the government can’t do, not what it can do. Of course Article l Section 8 of the U.S. Constitution, does if fact tell us the duties of the federal government, it’s just that for Obama and his advocates, those limitations are totally unacceptable.
Obama’s use of the bully pulpit here is no different than his recent attempts to steamroll the First Amendment by requiring the insurance providers of religious organizations to cover contraception as a component of health care. A “living, breathing” Constitution is one where any policy or law is ruled constitutional, so long as certain higher powers think that policy or law will be beneficial. At this point, it’s time to slowly reread the last two sentences of Washington’s quote above.
If Obama can intimidate the Supreme Court into letting unconstitutional legislation stand(Give me “General Welfare” and the Commerce Clause and I can make anything constitutional), side step the legislative branch with his cadre of Czars when necessary, and issue a host of executive orders, then he has effectively consolidated the various powers in one.