Constitution 'vetoes' fundamental change

Last week, we took a look at President Obama’s criticism of the Supreme Court, focusing on his attempt to influence the justices into deciding the health-care case favorably for his administration.

“Ultimately,” the president told the nation, “I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

We don’t know why he was so confident. He must not have been listening to the justices grilling the solicitor general about their concerns.

Consider, for instance, this comment, by Justice Anthony Kennedy:

“...here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in a very fundamental way.”

Now, maybe the president wants to change the relationship of the federal government to the individual “in a very fundamental way” because, as he told us when he was campaigning in 2008, his goal after the election was “fundamentally transforming the United States of America.”

Maybe the president wants that. Maybe even a large part of the federal government, including Republicans, wants that. But the Constitution does not want it.

The Constitution is there exactly to prevent just such a fundamental transformation of the relationship between the federal government and the individual. The whole idea of the Constitution is to restrict the government — to freeze it in place, to limit it at every turn — so that the individual can exercise his or her liberty unfettered.

Well, I suppose that must be pretty scary to someone like President Obama who thinks he knows better than you do how you should spend your money. He’s rifling through your wallet for your own good.

But there was yet another component of President Obama’s warning shot “across the bow” of the Supreme Court. Here is the rest of what he said:

“I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Again, the president is the “decider.” He doesn’t just know better than you and me; he knows better than the Supreme Court. He is “pretty confident,” in fact, that the court will get the message and do what he wants it to do.

Unfortunately for the president, his understanding of the law is no better than his understanding of liberty. To cudgel the Supreme Court as no more than “an unelected group of people” is to demean the Founding Fathers themselves for their brilliance in assuring a substantial check on the tyranny of the majority by structuring the government with one branch that didn’t have to pander for votes to obtain office. It is exactly the fact that they are unelected that usually makes them untouchable by politicians and the political process as well.

But what does President Obama mean when he suggests that the court should not “overturn a duly constituted and passed law”?  It was duly constituted in the sense that it was passed by the Congress, but many laws passed by Congress have been overturned as unconstitutional by the Supreme Court.    

Is the president merely confused about the difference between “constituted” and constitutional”? Yes, the Affordable Care Act WAS constituted, but constituted merely means that something was established. Constitutional, on the other hand, means it was established in a means consistent with the powers allowed to the government under the Constitution.

The president mistakenly appears to believe he personally gets to decide whether the law — in this case Obamacare — was established within the strictures permitted by the Constitution. He doesn’t. In fact, the whole reason why the Supreme Court is hearing the case at all is because at least one lower court has already ruled that the Affordable Care Act is not permitted by the Constitution. The Supreme Court, as always, will be the final arbiter of the matter, NOT the president.

One last thing. The president argued that if the court were to overturn the Affordable Care Act, it would be engaging in what is called “judicial activism” — commonly called “legislating from the bench.”

In fact, it would be doing what the court has done since 1803 — engaging in “judicial review,” the process by which courts look at a law and see whether the legislative branch made the law in a way that complies with the powers granted to the government under the Constitution. Upholding the Constitution is NOT judicial activism; it is instead the republic’s best defense against tyranny.

Judicial activism occurs when some party sues the government because they feel aggrieved over how some process works to their detriment or because they object to some limitation placed upon them, and then the court decides that it too thinks the aggrieved party should have been treated better. As a result, the court rules that because these people SHOULD have been treated better by the legislature or by the president — and because the legislature failed to pass the necessary laws to accomplish this presumed good — then therefore the court itself will order this good to be done which the legislature overlooked.

As God is reported to have said “fiat lux,” let there be light, at the beginning of time, so too the court now acts like a god and declares “fiat beneficium,” or let there be a benefit. This turns the Supreme Court into the grantor of rights, rather than their guarantor as intended by the Founding Fathers.

The most famous case of this in recent times is the holding by the U.S. Supreme Court that women have a constitutional right to abortion. Read the Constitution as thoroughly as you like — you will not find any reference to abortion. Mind you, there was no federal ban on abortion prior to Roe v. Wade either. That’s because, according to the 10th Amendment, “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.”

The states had regulated abortion for decades prior to Roe v. Wade. Therefore, that power should have been reserved to the states via the 10th Amendment. Each state had its own rules, just as each state has its own regulations for other types of health care procedures. If liberal New York wanted to allow women the ability to have an abortion, they could do so. If conservative Indiana wanted to ban such a procedure, they could do so as well. In this way, each state could reflect the will of “we the people” as it changes from place to place and over time.

But the Supreme Court stripped the states of their authority, robbed the people of their sovereignty, and alienated millions of people who still believe that the “right to life” is an inalienable right endowed to each individual by their creator.

If the court can do that — and not be scolded by this president — it can certainly overturn Obamacare.