Judicial activism and the health care law

President Obama said today the Supreme Court would be engaging in judicial activism if the justices throw out the health care reform law.

“For years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” the president said, “That a 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.”

Let’s look at these words more closely: “That a group of people would somehow overturn a duly constituted and passed law.”

The president is arguing that once a majority in Congress votes for a law and the president signs it, the U.S. Supreme Court has no legitimate authority to overturn that action.

But that is not our system of government. That is mob rule. The Constitution limits what a majority can do — you have rights that the government cannot infringe, not for the benefit of other people, not for your own good, not for any reason. The Constitution puts limits on the power of the federal government, and those limits are the essence of freedom.

The U.S. Supreme Court is not just “a group of people.” It is a co-equal branch of the United States government with the authority and responsibility to strike down a law that is unconstitutional.

That’s different than ‘judicial activism,’ which is a derogatory term for decisions by judges which change the meaning of the Constitution and effectively amend it without the explicit consent of the American people.

Don’t blame the judges, we are all responsible for it.

For more than eighty years, the American people have accepted “landmark” rulings as a substitute for constitutional amendments. For example, there never was an amendment banning race or gender discrimination, or requiring the states to provide jury trials in all criminal cases, or guaranteeing the right against self-incrimination in state courts, or protecting freedom of speech from infringement by state laws. The Supreme Court created all these rights through interpretation.

Our rights would be more secure if we amended the Constitution to state them in plain language. If we passed an amendment to ban race and gender discrimination, the country would be a lot calmer when a Supreme Court justice retired. We wouldn’t hear people yelling on television that civil rights and women’s rights could be rolled back fifty years if the wrong justice is appointed to the high court.

Nobody worries that the right to vote will be rolled back. The right to vote is in the plain language of the Constitution, put there with amendments as Article V provides.

The health care law relies on a wishfully expanded interpretation of the Commerce Clause, which allows the federal government to regulate interstate commerce. But there is no use trying to argue that the Commerce Clause gives the federal government unlimited power. The entire Constitution prohibits unlimited federal power.

“Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?” a frustrated James Madison asked in Federalist No. 41 when engaged in a similar debate.

The health care law is unconstitutional because the Constitution does not give the federal government the power to require Americans to purchase a product from a private company as a condition of lawful residence in the United States. In a government based on consent of the governed, nobody ever consented to give the federal government the power to do that.

The U.S. Constitution is not a musty old document in an archive. It’s not a lump of Play-Doh for brilliant legal scholars to mold into new forms. It’s an expression of the consent of the governed, and Americans have the right and the responsibility to hold the federal government to the contract we signed.

You have rights that the federal government cannot infringe. That’s what makes America a free country.


Susan Shelley is a candidate for Congress in California’s 30th district, the west and south San Fernando Valley. She’s the author of a history of the Bill of Rights titled “How the First Amendment Came to Protect Topless Dancing,” available in eBook format from Amazon.com.

Susan Shelley posted at 2012-4-2 Category: Uncategorized