Sunday, December 5, 2010

George F. Will Worth debating

"The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."  - Marbury v. Madison (1803)


Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators?  A case destined for the Supreme Court concerns the health-care law. The Constitution establishes a government of limited and enumerated powers. Which one empowers Congress to force individuals to purchase health insurance and to punish those who do not?


Supporters of the mandate answer: the power to regulate interstate commerce. Opponents reply: Unless that power is infinitely elastic, it does not authorize Congress to forbid the inactivity of not purchasing a product from a private company. If the power is infinitely elastic, Congress can do anything - eat your broccoli, or else - and America no longer has a limited government.



Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution's prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature's judgment that its police power - its general authority to protect the public welfare - trumped the constitutional ban on retroactive legislation?

Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett's words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."
The judiciary's role as referee of constitutional disputes is, Willett says, "confined yet consequential." But, "If judicial review means anything, it is that judicial restraint does not allow everything." And there can come a "constitutional tipping point" where, by excessive deference to a legislature in the face of a constitutional limitation, "adjudication more resembles abdication." Then a state's police power (or Congress's power under the commerce clause) can "extinguish constitutional liberties with nonchalance."
Like the U.S. Constitution, the Texas Constitution, Willett notes, is "irrefutably framed in proscription." It "declares an emphatic 'no' to myriad government undertakings," no matter how much a majority might desire them. So does the U.S. Constitution, as in the first words of the Bill of Rights: "Congress shall make no law . . ."
"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.

2 comments:

Baxter said...

The most recent case of activist judges in the SCOTUS is the Citizens United vs FEC ruling, overturning a century of legislation...

Eric Martin said...

My understanding is that I can choose not to purchase health insurance and be taxed instead.

Since I am already involuntarily taxed to pay for the health care of others - Medicare; I don't see why this law is logically different.

Obviously there are many partisans that would like to repeal the law by deeming it unconstitutional.

Referring to Marbury v Madison and then appealing to the founders' intent is goofy. Marbury v. Madison was a bizarre power grab; contrary to the interpretation of the father of the constitution himself, a named party to the suit.

I has long been the conservative position to see it as bad precedent.

It's amazing what people will do to line their pockets.