Re: Whatever You Think of Obamacare . . .

The Institute for Justice’s Robert McNamara and I evidently are living in very different judicial worlds. As I understand his post, McNamara claims that everyone should celebrate last Friday’s decision striking down Obamacare’s individual mandate whether or not that decision is right. Decades after the Warren Court’s massive expansions of judicial power, he apparently imagines that all those timid judges out there need encouragement to “assert [their] authority against the other branches of government.” So we all ought to applaud judicial decisions striking down legislative enactments, even if they’re wrong.

I, by contrast, believe that the Eleventh Circuit’s decision deserves to be celebrated if and only if it is right. (My sympathies are very much with such a conclusion, but I haven’t read the decision or studied the relevant authorities.) A judicial decision that correctly invalidates a legislative enactment vindicates constitutional rights or limits on governmental power. But a judicial decision that wrongly invalidates a legislative enactment usurps the realm of representative government. McNamara’s myopic focus on the need for a “robust judicial system” simply ignores, and thereby devalues, the principles of representative government that are at the core of our Constitution.

Relatedly, McNamara calls “judicial activism” a “meaningless … slur” and touts the far emptier term “judicial engagement.” I’ll refer the reader to my response to a similar criticism by one of McNamara’s colleagues and to my more extended defense of the term “judicial activism.”

Most Popular

U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More