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Re: Undermining the Voters’ Trust?



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Jonah, warnings about how people will lose faith in the Supreme Court if it rules against Obamacare are inevitable. The question is, should we care? On one level this is just a variation on the same theme as “we lost the recall in Wisconsin because of all the big money”: In its own mind the Left only loses an election or a court case when the system fails. That attitude is just silly, and hardly merits a response.

On another level the warning is more serious. Ever since the New Deal, liberals have advanced a view of the Constitution in which (a) the Court should be responsive to public opinion (that’s the “living Constitution”), and (b) the Court should never strike down a congressional regulation of economic activity. These views can only clash with the Constitution itself. The Constitution presupposes that (a) the Court’s constitutional review will not be corrupted by current politics, and (b) the powers of Congress are constitutionally limited and those limits are judicially enforceable.  

#more#The reason the impending Obamacare decision is causing so much angst on both sides is that, ever since the New Deal, the Supreme Court has been a rubber stamp for left-wing ideas, but that may now be coming to an end. Since 1937 the Court has refused to let the Constitution stand in way of any new expansion in federal power and instead has become a sort of super legislature, inventing rights here and there out of thin air. But in recent years, the Court has shown a renewed interest in what the Constitution actually says, its framework of enumerated and limited powers, and the imperative of federalism.

That is obviously a threat to the program of big-government liberals, who sense that virtually their whole agenda would be unconstitutional under a plain and honest reading of that antiquated document the president so charmingly refers to as “some rigid idea about what government could or could not do.” A 5–4 vote is not evidence of a politically polarized decision. The constitutional doctrines involved here are increasingly evenly matched in their support among judges, and an originalist reading of the Commerce Clause is increasingly in the ascendant, for the simple reason that no other reading can ultimately be squared with the framework of limited and enumerated powers that we know the Constitution is based on.  

Here’s a question for Juan Williams: Doesn’t the Court hurt its long-term legitimacy more by letting current politics infect its decisions? If the Court’s mission is merely to let transient majorities get their way then what we have is not a constitutional republic but a tyranny of the majority. In that scenario the Court is little more than a rubber stamp. 

The Court’s New Deal decisions were motivated by a desire to maintain its popular legitimacy. But nothing could have hurt its legitimacy more than to ignore the plain meaning of the Constitution in such an obvious manner: Ever since decisions like Wickard v. Filburn (1942), the Court has been caught in the liar’s dilemma, having to pile lies upon lies in order to cover up the original one. That may indeed be a strategy for keeping the voters’ trust, but it can only be effective so long as the public continues to be misled about what the Constitution really says.



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