ObamaCare and the Supreme Court
The purpose of our Constitution is to define and then to limit the federal government. Article I of the Constitution describes narrow and specific purposes of congressional legislation. One of those powers is to regulate "interstate commerce," but if anything can be called "commerce" and all "commerce" can be defined as interstate, then we cease to have a Constitution.
ObamaCare was passed as a vast, ugly pile of glop, and now this notional "reform" may be struck down by a 5-to-4 Supreme Court opinion. This corruption of process betrays just how dull our once-lustrous Constitution has become.
Leftists have long used the Supreme Court to fast-track their agenda by having augurs "read" into the Constitution things invisible to us mortals. Now the left is discovering that he who lives by the sword may die by the sword -- i.e., that we all should dread an imperial judiciary.
Justice Curtis wrote a dissent in the odiously racist 1857 Dred Scott v. Sandford, which warned of the danger to our republic: "when a strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned , and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to be." Seven months later, Curtis became the only Supreme Court justice to resign from the court as a matter of principle.
The left, which has used the federal bench to transform the First Amendment into a proclamation of atheism, might want to consider that in the 1892 case of Church of the Holy Trinity v. United States, the Supreme Court, after holding that an Anglican priest was not a foreign laborer within the meaning of a federal immigration law, explained:
Our laws and institutions must necessarily be based upon and embody the teachings of The Redeemer of mankind. It is impossible that it should be otherwise, and in this sense and to this extent our civilization and our institutions are emphatically Christian.
Does the left really want serious policy battles settled by the Supreme Court? If so, conservatives will inevitably focus their attention on capturing the court and using it like leftists have. So some future Supreme Court might not just reverse Roe v. Wade, but it might also declare that the unborn child is a person under the equal protection clause of the Fourteenth Amendment and strip from states the powers they had before Roe v. Wade to regulate abortion as they thought best. Such a conservative and activist court might also, on the same grounds of unequal protection, strike down the progressive federal income tax system, in which the rich pay a higher percentage of their taxes than the poor, as unconstitutional.
The left has defended an aggressive federal bench finding novel intentions in our foundational document because the Constitution must be a "living document," while conservatives have touted "strict constructionist" as our ideal of a federal judge. The lie in the leftist rhetoric, of course, is that our Founding Fathers gave us a Constitution with almost unlimited room to grow. In truth, the Constitution prescribes in Article V the process for that growth: a constitutional amendment. And this process requires much more than a simple congressional majority, a presidential signature, and five out of nine justices upholding the change; to wit, amendment requires a deep and broad national consensus, reflected by two-thirds of both houses of Congress and three-quarters of all state legislatures.
The conservative argument, if Obamacare is ruled unconstitutional, should be this: an unconstitutional plan can be made constitutional by amendment -- so amend away! Do not try to force grand changes in our government by the clandestine caucuses of the majority in Congress and the dark cloisters of our highest court. Persuade both political parties in Washington and the people in every region of our nation to sign on to your plans. What the left knows, of course, is that it can never get that sort of broad support. It lives in the shadows.