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Why a Constitution?
Liberals fear the Court may respect its limits.


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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.

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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.



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