Against Judicial Supremacy
We shouldn't rely on the Supreme Court to enforce the Constitution.


President Obama had not even signed the health-care bill into law when ten state attorneys general announced that they would challenge its constitutionality in court. Their claim, in part, is that Congress has no power to force individuals to purchase health insurance, because such a requirement is not a regulation of interstate commerce.

What could be more American than to hope that the Supreme Court might save us from the monstrosity of Obamacare? How pleasant to think that this ugly product of an ugly political process might be eliminated by a careful and cerebral appeal to the fundamental principle that the national government in this country has only limited, enumerated powers!

A happy prospect, indeed. As always, reliance on judicial power means — or seems to mean — that we are not at the mercy of political demagoguery, that the permanent principles laid down by our Founders provide limits to partisan malfeasance, and that passion and ambition are, in the end, contained by reasoned argument.

Moreover, since the Court’s constitutional precedents are many and varied, placing one’s reliance on judicial power can almost always seem realistic. True, in the decades since Republican appointees took numerical control of the Court, many of its decisions have been surprisingly left-leaning. The Burger Court, for example, brought us forced school busing and the right to abortion, while the Rehnquist Court protected the rights to burn the American flag and to engage in sodomy. Nevertheless, recently the Roberts Court has protected the right to bear arms and the right of corporations to participate in political campaigns. And, more directly to the point, not so long ago the Court handed down two opinions that attempted to define limits to the federal government’s right to regulate commerce.

So hope springs eternal. Indeed, some on the right are sufficiently sanguine about the Roberts Court that they are eager to abandon conservatives’ traditional distrust of judicial power. Using the same kind of imaginative legal arguments that leftist lawyers and judges have relied on in modern times, some thoughtful lawyers on the right propose subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there. While liberal lawyers strategize about establishing a constitutional right to gay marriage, conservative lawyers plot to create a right to “medical self-defense.” The idea that constitutional argumentation can be used to achieve ambitious moral and political objectives is so attractive that Americans of all political stripes turn to the Court even when the likelihood of vindication is slim.

The chances that the new health-care law will be found to be beyond Congress’s power to regulate commerce are in fact slight. The Court’s general standard demands merely that the affected activity must, in the aggregate, have a substantial impact on interstate commerce. It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.

There are larger reasons to think it strange to turn to the Court to protect us from Obamacare. The reason Congress is granted only limited powers by the Constitution — and why states retain those powers not enumerated — is to promote separation and competition between the two levels of government. It seems improbable in the extreme that the justices, who are (after all) important and proud components of the national government, would view with sympathy those presumptuous states’ claims to power.


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