Why a Constitution?

By Charles C. W. Cooke
Friday, April 06, 2012

In 2005, Nancy Pelosi characterized a Supreme Court decision with which she agreed as being akin to “if God had spoken.” But given the penumbra of gloom that has emanated from the Left since the administration’s disastrous legal defense of its signature health-care law last week, we might presume that others of her political persuasion do not share her faith. Over the course of the last two weeks, many progressives have careered quickly through agnosticism and all the way over to judicial atheism. Now, rather than perceiving the Court to be merely an occasionally unreliable partner in crime, the movement is hysterically warning of an “activist” hijacking of representative government by “unelected judges.” All of a sudden, the sky is falling, known swing-vote Anthony Kennedy is being routinely described as a “conservative,” and the likes of E. J. Dionne and James Fallows are warning of a “coup d’état.” It seems that “God” has become vengeful.

This is rather odd. Faced with the potential loss of Obamacare, the Left has taken on the complexion of the victim, painting a picture of a doctrinaire and politically “conservative” Supreme Court tyrannically riding roughshod over a cowed and popular legislature. But since last week’s oral arguments, the real speculation has been about how “conservative” Justice Roberts and “independent” Justice Kennedy will vote, while there has been no conjecture whatsoever about the likely opinions of the court’s four “liberals” — Kagan, Sotomayor, Breyer, and Ginsburg — all of whom are widely predicted to side with the administration. Clearly, if any group within the court deserves to be described as “doctrinaire,” it’s this quartet. No such depiction has come forth.

Indeed, for 70 years now, the Court has shown an untold deference to Congress, and, on economic matters at least, allowed progressives to realize almost every desire that they could get past the people. If the federal government has finally pushed it too far with Obamacare — which it may well have done — it will be the Court’s limiting federal power that will be anomalous; a rare check on the insatiable power of the state instead of business as usual. E. J. Dionne might well consider that, in response to this trend, conservatives have moved “further to the right” than ever, but that is a separate debate; for it is not the Republicans’ political platform, but the never-ending expansion of government, that has put the Department of Health and Human Services in court. And if judicial skepticism toward a federal government that can find no limiting principle to its power represents a “coup d’état,” then one has to ask what the Constitution is for.

This is the salient point. At the root of the Left’s upset is a palpable hostility to the very idea of a limiting Constitution, coupled with a deep-seated belief that absolutely everything is political. New York magazine’s Jonathan Chait wrote regretfully last week of a supposed “strand of conservative/libertarian judicial activists who believe the Constitution requires small-government policies.” And, channeling Nancy Pelosi’s 2009 incredulity at the idea that government could outgrow its intended role — “are you serious?” she asked a journalist who questioned the constitutionality of Obamacare — President Obama publicly decried “judicial activism or a lack of judicial restraint” and worried that “an unelected group of people would somehow overturn a duly constituted and passed law.” But reining in the power of the state is precisely what the Constitution — which is a charter of enumerated powers, remember — is there for. It is designed, in fact, to prevent a coup.


The cries of “usurpation” are thus misdirected: This week, President Obama publicly rebuked the Court for the second time and Representative James Clyburn (D., S.C.) warmly and publicly praised Franklin Roosevelt’s disastrous but efficacious attitude toward the Court, suggesting for good measure that “running against” it might be a model for Obama in the impending election. The Supreme Court, meanwhile, hosted oral arguments and discussed whether a federal law passed legal muster. In doing so, it continued an uncontroversial tradition of judicial review that started in earnest in 1803 with Marbury v. Madison.

Obama’s favorite contention — that to strike the law down would be “unprecedented” — is correct, insofar as the law that his administration is trying to sell is unprecedented and thus breaks new judicial ground. (Most Supreme Court decisions striking down laws are, by definition, unprecedented.) But the Left’s deftness in willfully distorting what happened last week should not surprise. Indeed, from the government’s own testimony, Obamacare is quite the illusionist: Over the course of the six hours of oral arguments, we were told that the law levies a tax that is not a tax, that it features an individual mandate that is both inextricable and easily severable, and that its passage was such a Big F***ing Deal — Obama being the first president in 100 years to “fix” health care — that the Court is out of line to examine whether it transcends previous federal behavior. It would be much more honest if the administration would just come out and admit that they consider the consequences of their legislation to be too important for constitutional oversight.

That the Court asked hard questions is not a sign of a coup, but of the judicial branch’s working as it should. America had its salutary coup in 1776, the eventual result being the passage of a Constitution designed explicitly to prevent the likelihood of another. Since Woodrow Wilson became the first president openly to disparage the Constitution, liberals have been trying to overthrow the tenets established by the founding generation and to replace them with the prevailing “spirit of the age.” Their failure to do this is an understandable source of frustration, but to conclude that those whose job it is to thwart them are guilty of a coup is a stretch too far.