I like my constitutional review straight up. Which is why I like Justice Roberts' opinion yesterday, even though I hate Obamacare and think it will lead to economic collapse if fully implemented. The obligatory disclaimers: I'm not a constitutional scholar, I just play one on this blog. (And yes, this blog is normally a needlework blog with a dash of family life and book reviews thrown in. What can I say, I'm versatile.) It has been almost 25 years since I sat in a Con. Law class, and about 15 since reading Robert Bork's
The Tempting of America, which formed my opinions on this issue and I highly recommend. I would be extremely interested to read Bork's opinions on this ruling, but until I do, I will break with the reactionary conservative take on this and say it was a good ruling, a refreshing exercise in judicial restraint, and possibly the jolt our country needs to get it back on track. In the extremely bizarre alternate reality where I am a Supreme Court Justice, I might even have written it, although I don't know -- it would take a lot of chutzpah to go against Scalia.
Ideas have consequences. Elections have consequences. For too long, the American people and their elected representatives have relied on the judiciary to rescue them from their own imprudence. But the Supreme Court, like all the courts below it, is supposed to be apolitical. Remember those statues of Justice blindfolded? The Court should be above the fray of the 4-year election cycle. To the masses of angry conservatives: were you this upset about
Roe v. Wade, which didn't directly affect your pocketbook? And if you were, what was your remedy? Those of us in the pro-life movement have known for decades that we have to take the long view. In the ordinary course of American life, if we want political remedies, we have to get involved in the political process, which is messy and carries no guarantees. If we want judicial remedies for political problems, it's like asking for a S.W.A.T. team with fully automatic weaponry to take out a gopher. The collateral damage of such an approach has been the story of my generation.
At the very least, yesterday's ruling did not find a new "right" lurking in the emanations and penumbras of the Constitution. In fact, it looks like it may have significantly restricted the recently very loose interpretation of the Interstate Commerce Clause. This is a good thing... even a groundbreaking thing. I suspect this ruling will be studied as a landmark case from now on, and that it is a good thing for America as new cases testing the government's regulatory powers come through the judiciary. But Roberts has perhaps done even more, by doing less. He has placed responsibility for good government back where it belongs; the people and their duly elected representatives. That's all; nothing new, nothing proactive. Good, old-fashioned separation of powers. "Individual mandate?" No, just a fancy-schmancy term for "tax." And Congress has the power to tax. Whether it's wise to tax the people this much or not is for the people to decide. This ruling was not judicial overreach (if anything, it was underreach compared to what we've seen recently): Obamacare was executive and legislative overreach, and the remedy for that is not in the courts.
To take care of the problem created by Obamacare, we the people need to take care of the problem that we elected four years ago. That has always been the way it is, but sometimes it's easier to get mad than to get busy. We can't afford that self-indulgence now. Justice Roberts has given the nation a dose of tough love and sent us on our way to the ballot-box.
If you want further reading, try these:
Hugh Hewitt
Red State
Real Clear Politics
William Kristol
Fiat Justitia Ruat Caelum.
Fiber arts blogging will recommence next post with the Tour de Fleece.
