Overturning ObamaCare isn't 'Judicial Activism'

Since the Supreme Court's historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court's constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate "judicial activism," but an appropriate exercise of the Supreme Court's core constitutional role.

"Judicial activism" is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising "will instead of judgment," in Alexander Hamilton's phrase.

Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, "is of the very essence of judicial duty."

This duty is not properly limited, as ObamaCare's increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress's powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees.

The Framers assumed that the Constitution's federalist architecture, dividing power between the federal government and the states (creating a "vertical" separation of powers to complement the "horizontal" separation among the three federal branches), would be the primary defense against governmental overreaching.

“This duty is not properly limited, as ObamaCare’s increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress’s powers”

Whgo wrote this? Congress’ powers being inherently limited to what’s enumerated is made explicit by the 10th amendment. The Bill of Rights includes the 10th amendment. Therefore, striking down Obamacare for not being justified by the interstate commerce clause, or anything else for that matter, would be “judicial enforcement of the Bill of Rights.”

Of course, long ago in the heyday of progressivism the court distinguished “civl rights,” or however they put it, from other kind of rights, banely the ones they didn’t care about. :argely this was a middle finger to decisions like the infamous Lochner that struck down federal laws in the interest of economic liberty via the contracts clause, due process, etc. This bit of arbitrariness is how come free speech, for instance, has been “incorporated” to apply to the states and the 2nd amendment hasn’t.

No doubt many will see Obamacare’s (hopeful) downfall (knock on wood) as a retreat to pre-progressive Lochnerism. But it won’t be about that, really (again, hopefully). They won’t be reviving long dead economic liberties. It’ll be about the limited nature of federal power, which, as I said, is well covered by the Bill of Rights.

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