The Supreme Court Cannot Overrule the People for Long

by Charles C. W. Cooke

Here is President Thomas Jefferson, warning in an 1807 letter of the danger posed by the Supreme Court taking it upon itself to grant the government more power than the constitution allows:

I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time & trial show are still wanting. But it has been taken too much for granted, that by this rigorous construction the treaty power would be reduced to nothing. I had occasion once to examine its effect on the French treaty, made by the old Congress, & found that out of thirty odd articles which that contained, there were one, two, or three only which could not now be stipulated under our present Constitution. I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.

One cannot help but see a parallel between Jefferson’s warning of “boundless” power — of the potential of construction effectively to create “no Constitution” — and the questions that Justice Kennedy, in particular, asked when trying to establish a “limiting principle” to the individual mandate.

Fearing that Obamacare is going to be struck down, in part or in full, the Left is currently engaged in a sordid attempt to paint the court as a tyrannical body unjustly thwarting the will of the people. But, as Jefferson points out, the people — who ultimately decide what constitutes our “deeply embedded social norms,” in the slippery words of the Solicitor General — already have a mechanism by which they can decide that the current state of affairs isn’t working. In doing so, they can override the authority of the nine judges, whose role it is not to interpret the constitution through the lens of popular sentiment but to look at the document as it stands and decide if legislation is compatible with its tenets. That mechanism is called the constitutional amendment process, and it exists to allow the people to change the power of the state.

If the Supreme Court strikes down Obamacare, and the president starts running up and down the country complaining that it has thwarted the people’s will, conservatives should remind the public that, if We the People want to allow the government to mandate us to buy private products, there is nothing preventing us from passing a 28th Amendment to that effect.

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