Thursday, April 5, 2012

Our Constitutional Law Professor in Chief

Probably already aware of the preliminary Supreme Court vote on the constitutionality of his Patient Protection and  Affordable Care Act, President Obama began "working the refs" in a press conference earlier this week in the hopes of securing a change in the outcome.




He knows something about law. After all, he graduated with a J.D. magna cum laude from Harvard Law School and taught constitutional law at the University of Chicago for twelve years. He has chosen to set aside this cap:




for this:






He made a brief allusion to the constitutionality of the PPACA before devoting the bulk of his comments to the utilitarian case for his law: what it will do for the uninsured.

Returning to the question of the acts constitutionality, Obama expressed his confidence that the Supreme Court would not take the  "unprecedented and extraordinary a step of overturning a law that was passed by a strong majority of  a democratically elected Congress."


First, such an action is not even remotely unprecedented. The precedent was established in 1803 in the Marbury vs. Madison case and has been exercised dozens of time since. Moreover, the claim that Congress passed the law by a strong majority is only a half truth. The Senate passed it  by a strong majority of 60-39. The House, however, enacted the law with a slim seven vote majority, 219-212.

Then the President attempted to imply that conservative support for a Supreme Court ruling against PPACA amounts to hypocrisy.

"And 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."

Actually, it is NOT a good example. The phase "judicial activism" does not have a precise meaning. It gets tossed around whenever a court delivers a decision that someone does not life. Neither conservatives nor liberals like the Supreme Court when it rules contrary to what is desired.  In general, conservatives use the phrase judicial activism in reference to court decisions that create government powers or individual rights that are not even remotely hinted at in the Constitution.

In the last hundred or so years, the Supreme Court has affirmed the tremendous expansion of government power though both acts of Congress and executive orders of Presidents. Nowadays, Congress believes it can legislate on almost anything. And as Congress expands the scope of its legislation, it expands the scope of federal court jurisdiction. The founders established the legislature as the supreme branch of the government. It constitutes the "republican principle" in government. It is NOT co-equal with other branches. That said, the United States is, however,  a constitutional republic. Congress must operate within the bounds of the fundamental laws of the Constitution.

In addition, the court has recognized individual rights that in cases that are difficult to justify on constitutional or any other grounds. Now our rights are not granted to us by the Constitution. Our founders believed in natural rights that we possess by virtue of  being human and receive as a grant from God. On the one hand, we should not confine our rights to those listed in the Constitution. On the other hand, neither the courts or society should feel compelled to recognized every "rights-claim" asserted by every citizen.

The Supreme Court imprimatur on both extra-constitutional legislation from Congress and extraordinary individual rights-claims expands the role of the national government at the expense of state and local governments and  subverts the principle of federalism inherent in our Constitution.

It is this to which conservatives object.

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