Tuesday, April 3, 2012

"An unelected group of people"

Or, if you like Mr. President, one of our three co-equal branches of government.

The President from the Rose Garden yesterday on the likelihood of Obamacare being judged constitutional or not by the Supreme Court:
"I am confident 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...I just remind conservative commentators that for years we have heard 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 am pretty confident that this Court will recognize that and not take that step."
There is so much wrong with this:

First, there is absolutely nothing "unprecedented" or "extraordinary" about the Court overturning a law it judges unconstitutional.  That is precisely what the Court does; that is its constitutional role and the process by which it does so is called judicial review.

Second, no bill can become a law in the first place unless a majority of both houses of Congress vote for it.  We have no minority-passed laws.

Third, that Obamacare was passed by a "democratically-elected congress" no one denies, although the implication of his use of the phrase is clear:  All challenges to it are somehow un-democratic and therefore illegitimate, even if they are constitutional.

Fourth, that it was passed by a "strong majority" is false on its face.  As I said, it was passed by a majority by definition, but it was not passed by a representative majority.  No Republican voted for the bill.

Fifth, the Court performing its duty to judge a law constitutional or not is no definition of judicial activism.  Rather, judicial activism is defined as the Court stepping outside, and often eagerly so, the otherwise narrow process of judicial review in order to discover, to invent even, extra-constitutional rights from the "penumbra" and "emanations" of the in any case not fixed, but "living, breathing" Constitution, and thereby prescribing on its own what are in effect statutory obligations and mandates on the other two branches, on the states, and on the people.

Sixth, the phrase, "an unelected group of people," is in the first instance an insult not only to the dignity and integrity of the Court as a whole, but also a personal insult to each of its members, to include its more liberal justices who are likely to agree with the President about the law before them, not to mention the two of those Obama himself nominated.  But insults aside, that the Court is "unelected" not only goes without saying--we are all aware of the constitutional process whereby Court members are nominated, approved, and seated--that they are "unelected" is so by design.  The Framers quite deliberately sought to create and sustain an independent judiciary, a truly independent third branch that could effectually check and balance the other two precisely because it is unelected.

BTW, some of you may be thinking that these comments are contradicted by a couple of my previous posts (here and here).  Not so.  Those musings were about the absurd spectacle of us surrendering in this case our right to and duty of self-government to nine, five, or even one justice.  They were also a comment about the foolishness of pretending that the Court's decision here will in any legitimate sense resolve the underlying issue as this issue is simply too big for this or any Court to resolve.  It is simply, if not the last, certainly the most significant brick yet laid in the huge, monstrous, edifice that is the omnicompetent Nanny State, the Left's New Jerusalem.  For that decision, we all need to be involved, and quite directly so, because what we're talking about doing is abandoning the old and familiar America for an altogether new and different one.


  1. Nice essay, Sage. This all fits with the President 'calling out' the Supreme Court in his State of the Union address a few years ago. That was truly a breach of decorum, both constitutionally speaking and in terms of simple common decency. Talk about a lack of 'civility'....

  2. Thanks sf.

    One wonders whether they will remain just "an unelected group of people" if they rule in Obama's favor?

    Of course, one doesn't have to wonder all that long.