|
Townhall
Finance...
Conservatives And the
Courts
by Michael Tanner
Who says bipartisanship is dead? Left and Right have finally found
something that they agree on. They are both unalterably opposed to
judicial activism — except, of course, when they aren’t.
The latest meme from the Obama administration, congressional Democrats,
and much of the media is that if the Supreme Court were to strike down
all or part of Obamacare, it would place the Court’s legitimacy itself
at risk. After all, since only 28 state attorneys general, at least two
District Court Judges and five Circuit Court Judges (including a
Clinton appointee), numerous law professors, the 52 organizations and
hundreds of state legislators who filed briefs in support of the
plaintiffs, and 72 percent of the American public believe that
Obamacare’s attempt to force every American to buy a specific
commercial product is unconstitutional, it would obviously be an
unprecedented act of judicial activism for the Court to agree.
Of course, there is nothing really unprecedented about the Court
striking down legislation that it finds outside of constitutional
bounds. Between 1803 and 2002, the Supreme Court struck down as many as
1,315 laws on constitutional grounds. Indeed, many of the judicial
decisions that liberals hold most dear involved striking down
legislation. For liberals to now argue that legislative action has
become inviolate is pretty much the height of chutzpah.
To some extent, though, conservatives are simply being hoisted on their
own hypocritical petard. After all, opposition to “activist judges” has
become a standard part of conservative boilerplate. It was only a few
weeks ago that Newt Gingrich was winning plaudits for his threat to
haul recalcitrant judges before Congress and pledging that he would
simply ignore Court rulings with which he disagreed. And, when the
courts struck down California’s Proposition 8, many conservatives were
apoplectic at the idea that a court could overrule the democratic will
of the voters. An entire generation of conservatives have seemed to
echo Robert Bork’s call for deference to legislative majorities in
nearly all circumstances and dismiss the Ninth Amendment’s description
of unenumerated rights as a mere “inkblot.”
For both sides, judicial activism has come to mean “any Supreme Court
decision that I disagree with.”
Michael Tanner is a senior fellow at the Cato Institute and author of
Leviathan on the Right: How Big-Government Conservatism Brought Down
the Republican Revolution.
More by Michael D. Tanner
Actually though, don’t we want an active or engaged Court when it comes
to upholding our constitutional rights and guarantees? Obviously courts
should not invent “rights” out of whole cloth, or substitute their
views for that of the Constitution. But, the Founding Fathers
understood that sometimes legislatures go too far, that there will be a
temptation to exceed the proper powers of government. When they do so,
it is the proper role of the courts to rein them in.
Roger Pilon, the B. Kenneth Simon Chair in Constitutional Studies at
the Cato Institute, has argued that conservatives too often “limit
constitutional rights to those fairly clearly ‘in’ the document... Thus
for conservatives, if a right (is) not clearly ‘in’ the Constitution,
it (does) not exist. What conservatives of the judicial restraint
school have to come to grips with, then, is the full richness of the
Constitution, including its natural rights foundations... for as the
Ninth and Fourteenth Amendments make clear, the rights ‘in’ the
Constitution are not limited to those the document plainly enumerates.”
Indeed, he adds, were it otherwise, we’d have had precious few rights
against the federal government before the Bill of Rights was added.
But as George Will notes, “Truly conservative conservatives take their
bearings from the proposition that government’s primary purpose is not
to organize the fulfillment of majority preferences but to protect
preexisting rights of the individual — basically, liberty... This
obligatory engagement with the Constitution’s text and logic supersedes
any obligation to be deferential toward the actions of government
merely because they reflect popular sovereignty.”
It would indeed be proper for the Court to strike down Obamacare. That
would be exactly the sort of principled, active judiciary that the
Founding Fathers envisioned in order to secure our liberties and limit
the power of government. It is an “activism” that we should welcome.
Read this and other articles at Townhall Finance
|
|
|
|
