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Over-ruling Obamacare and Judicial Activism

Written on Friday, July 15, 2011 by

obama signs health care bill

Patriots rejoiced as the Reagan-appointed judge Roger Vinson in Pensacola FL ruled:  “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.”  He pointed out that if Congress were allowed to order people to buy an insurance product for the good of their health, there would be nothing to stop it from ordering people to buy and eat broccoli for its health benefits, or for everyone above a certain income threshold to buy a GM car.   Or as five South Dakota lawmakers realized, they could order everyone to buy a gun for their own protection—specifically as a reductio ad absurdum of the leftist mentality behind Obamacare.

Furthermore, Judge Vinson  said that because the law is unconstitutional, there was no need to issue a further injunction against implementing it, since federal officials have no right to enforce an unconstitutional law:

As a result, the declaratory judgment is the functional equivalent of an injunction. … it must be presumed that federal officers will adhere to the law as declared by the court.

Unfortunately, he later issued a stay his January ruling, allowing the Obama administration to continue to implement Obamacare while his ruling is being appealed.  Yet this should be a good time for the House, which under the Constitution initiates all spending bills, to defund implementation, until and unless Judge Vinson’s ruling is overturned.  But the Republican leaders like John Boehner have once again showed that GOP = Gutless Old Party.  Yet it would be hard for liberals to object with integrity, because they normally preach judicial supremacy—when it implements leftist policies they would never get through the ballot box.

The role of judges

However, some clearer thinking is needed—even from conservatives—about the role of judges.   Too many people on both sides applaud or curse a judge’s ruling totally on the basis of whether they agree with the policy or not.  Thomas Sowell points out:

The idea that conservative judges will vote for conservative policies and liberal judges for liberal policies is the antithesis of what a judge is supposed to do. While some judges in fact vote largely on the basis of their own ideology or policy preferences, that is neither what they are supposed to do nor what all judges have done.

He cites the Supreme Court Justice Oliver Wendell Holmes Jr. (1845–1935) saying that his job was “to see that the game is played according to the rules whether I like them or not.”  Indeed, he often voted for the side whose beliefs he abhorred, simply because this was what the law said.

This is the only way our nation can truly follow the Rule of Law, which to have any meaning, must be about rules knowable in advance about what is allowed or forbidden.  And if people don’t like the rules, then it’s normally up to them to persuade the legislators to change them.  But what America largely has is the rule of judges—the ones the Left loves.  This is not “rule of law” in any meaningful sense, since we can’t know in advance the whims of judges who try to be super-legislators—something that is legal now might be declared illegal tomorrow, e.g. depending on which side of the bed SCOTUS Justice Kennedy wakes up.

The Constitution

Of course, the major set of rules that binds all three branches of government is the US Constitution.  America was founded by people who recognized the government as a necessary evil, so drew up a binding documented that limited its powers.  They also constructed three branches of government so they could check each other’s power if constitutional boundaries were overstepped.

But the main debate today is how to understand the constitution.  The correct way is originalism, as advocated by SCOTUS Justice Antonin Scalia: what the words would have meant to the original readers.  This preserves the rule of law, since it’s possible to know this in advance.

For example, the “establishment” clause had a crystal-clear meaning at the time—forbidding an “established” State Church, so there would be no “Church of the USA” in the way that the Anglican Church is the “Church of England”. It clearly could not have meant expunging all traces of Christianity from public life, as shown by the practises of their time.  E.g.  a tablet representing the 10 Commandments is above the Chief Justice’s head.  When the President gives his state of the Union address, he faces a giant sculpted image of Moses holding the Ten Commandments, while behind him, there are giant chiselled letters “In God We Trust”.  Naturally the Leftmedia never show this. Also, schools used the Bible in class, and the New England Primer, used to teach schoolchildren how to read, was overtly Biblical.

Furthermore, Sowell points out in his comprehensive book Knowledge and Decisions that it would be meaningless to have provisions to amend the Constitution by changing the wording if the original words were not fixed in meaning.

In the Obamacare decision, Vinson reasoned from the original meaning:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

But the judges so beloved of the Left, along with Al Gore, preach a “living constitution”, i.e. one where the meaning changes according to “evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles 1958).  But then, there is no longer any rule of law, since people can’t know in advance what standards judge might decree have sufficiently evolved.  Rather, “living constitution” judges merely use the word “unconstitutional” to mean “something I think should have been prohibited in the Constitution and would have been if I had written it”.

Activism?

The term “activist” is also a red herring, as Sowell points out. It is often used by conservatives to attack “living constitution” judges who legislate from the bench, but is now being used to attack Judge Vinson.

But a judge should be activist, in the sense of ruling against the Legislative branch, if a law clearly goes against the original meaning of the Constitution, as Obamacare does.

That’s also why SCOTUS was right to overturn parts of the McCain–Feingold (aka Incumbent Protection) Act in Citizens United v. Federal Election Commission (2009): what part of “Congress shall make no law … abridging the freedom of speech, or of the press” didn’t McCain and Feingold understand? Similarly with District of Columbia v. Heller, where SCOTUS declared that DC’s absolute gun ban was unconstitutional. Indeed: what part of “the right of the people to keep and bear Arms, shall not be infringed” don’t DC (and Chicago) understand? If they don’t like guns, then try to repeal the Second Amendment!

“Activism” is a problem only where judges invent a ‘right’ that’s nowhere to be found in the Constitution, such as gay “marriage”.

Another infamous example is Roe v Wade, which invented a right to unlimited abortion from an “emanation” on a “penumbra” of a constitutional right.  Dissenting Justice Byron White said:

The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.

Dissenting Justice William Rehnquist pointed out:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.

So I suggest that conservatives drop the word “activist”, and instead use terms like “Constitutionalist” v “Pseudo-legislator”.

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  • http://yahoo.com pauline soares

    barry never legally changed his name to barak obama, thats why there is no long form or school records for college. a name change would be public record, a new long form would be issued along withe a new ss card. anyone with any legal knowledge, please look to see when he legally changed his name to obama. if he did not, he is living under an assumed name which is illegal. he would have lots oflegal issues and the libs would have a cow

    • Donna

      He already has more than 1 SS card. I cannot bear the thought of seeing his face everywhere on TV and computer again. He is sickening — got that BO!!! We don’t like you, or do we say, “got that BS!! We don’t like you”. aka BS Barry Soreteo

    • Clark

      oscuma, the kenyan negro muslim communist has used nine different social security numbers, some of deceased people. This is identity theft and fraud. He has had several different driver’s licenses under different names, he went to school in the United States as an indonesian muslim exchange student. This scum has left a “black” mark on the United States, so to speak.

    • Bobnip

      Clark,

      Leave Racism out of the subject at hand. I dislike Obama as much as you do, but for legitimate reasons! I don’t care of he’s green! This is a man that is attempting to destroy America. That is why he needs to be gone…not because he is Black! Comments like yours give ammunition to the Liberal Left. They take your post and publicize it saying, “See, we told you they were racists”.

      You just put yourself in the same category as Louis Farrakhan, Al Sharpton and Jeremiah Wright. How’s that feel??? Be smarter!!! Don”t give Democrats anything to use against the Tea Party.

      I am in a leadership role with the Tea Party in my area. Had you come to one of our meetings and spewed racist rhetoric…I would have escorted you to the door and told you not to come back!

    • Dave

      Bob, does that mean that your Tea Party group would actively ban free speech in your meetings? I totally understand that a majority of your members may find this sort of speech distasteful, and would want to separate that sort of speech from that espoused by the group itself, but I am not so sure that escorting someone out the door of your meeting because you find his thoughts and speech offensive is what the Tea Party is all about. His speech is protected free speech, just like yours is. If you are able to persuade him to voluntarily stop using speech that your own members find offensive, that is fine, but to compel him through force to stop voicing his opinion does not seem like “protected free speech”. Would you also force a black person attending one of your group’s meetings to leave if his views on racial issues were disturbing to your members? If you would, how would you handle a media backlash if it was reported that you actively strive to limit offensive speech?

    • CanalFisher

      There is a simple way solve this argument and I am at a loss as to why it silently went away. When the man in question attended his 1st College in California he only could attend was through a special Grant he received that would give students of color from here and in impoverished countries. Our Country gave HIM a $50,000 Grant as a citizen from INDONESIA under his stepfathers last name.

    • Victoria DeLacy

      What a concept. One T.E.A. Party attender played a song on her guitar about how there is a Commie living in the White House…so it follows from his paternal grandmother (“Mama Sara”) on You Tube video having claimed to have been an eyewiteness to his birth in Mombasa Kenya that we also have an illegal alien in the Oval Office – impeach, indict and remove, NOW!

    • njgirl

      You are referring to the Fulbright Scholarship given to foreign students. I too had read about this. Rev. James David Manning has investigated Obama’s claim that he graduated from Columbia University only to find that he never attended Columbia. He claims that he has definitive proof and proof of where Obama/Soetoro truly was between 1981-1985. It is very strange that no one at Columbia remembers ever seeing him even though he supposedly took the same classes as some that attended Columbia the same years that Obama claimed he did. I’m quite sure if I or anyone else for that matter went to college with someone who later ran and became President, we would certainly remember him. We would say something like, hey, that guy was in my political science or whatever class. Very strange indeed.

  • silverfox

    ” OBUMMER” and the rest of the “LIBEERAL LEFT” rely on ‘the rule of judges’ to help them instead of “the RULE of LAW” like the FOUNDING FATHERS wrote into the CONSTITUTION.

  • Dean

    The beauty of our Constitution, is that it does not require a law degree or even a great deal of intelligence to understand! Anyone that says otherwise, is a liar, as well as probably a lawyer. The people are tired of being lied to and treated like idiots.

    • http://na John Mc Clain

      After all remember a lawyer is nothing but a paid liar. His job is to make his case which may or may not resemble the truth!

    • tooty52

      Actually my senior year of high school, as a requirement for graduation, we had to take one government class which was the U. S. Constitution, Bill of Rights, and memorize each amendment and the meaning. It took one full quarter to get through it all but either you passed it or had to take it the following year to get your deploma. That was 1970. Who would have thought 41 years later I would glad it was a requirement thinking about it now. I don’t think schools even teach it now days because from the prez on down they sure don’t have a clue what it is and why we have it.

  • Richard

    The DC/Chicago gang cares little about the constitution and does what it intends regardless of any provision in the law that would thwart its nefarious endeavors.
    The problem is that those who do know and support the constitution seem unwilling to challenge the usurpers of power. One must wonder what degree of influence can be acquired by the monied power elite to silence any dissent to their assault on the constitution.

    • Jean

      Well said — and thank you for saying it!
      When you view the video of 2007 where Obama states in his own words that he was born in Kenya, you have to ask, WHY are we not in the process of impeaching him????

    • Viva

      I had someone point out that videos can be edited to say and do whatever is wanted. Anyone can edit one with the technology provided. I read Obama would have had to change his citizenship, at some time. I suppose that record is also under lock & key.

    • Victoria DeLacy

      Definitely, since it is a known fact that Obama has spent over $2 MILLION to keep all of his records under wraps – Dr. Manning had a good video on that topic entitled something like “Just Produce the Birth Certificate!” Check it out from Atlah or You Tube.

  • PENELOPE8

    INTERESTING PERSPECTIVE – LAID OUT VERY WELL. I LOVE THE TERM CONSTITUTIONALIST VS PSEUDO-LEGISLATOR.

  • http://Yahoo.com Thomas Martin

    barack hussein obama was bought and paid for by george soros. They have some thing in common, they’re both anti America, and bad for our country.

    • TE DEUM

      If I did not know better [ maybe] , I would have said that Barry is actually praying to the Devil himself. How else could one get into that office so easily, stay there, and create so much destruction and mayhem on all ? GOD HELP THIS COUNTRY.

    • http://na John Mc Clain

      The worst sin a muslim can commit is leaving islam! Guess who was raised as a muslim from childhood. I say he has not committed that sin. It says in the Quran that is is ok to lie to the infidels to further Islam..sort of just fits into place doesn’t it! IMPEACH NOW!

    • rhurt

      That may be true, however the Saudis were monitored by Israeli paid professionals and they heard the Saudis boast before 2008 they would have a Muslim in the White House by the year 2008. We also know that the Saudis paid for Obama’s education while at Harvard University. Obama has done his usual thing of paying back to his supporters-the Saudis-by promoting one of the largest and most up to date military equipment packages ever in foreign aid to the Saudis. He has also agreed to allow the Saudis, only, to monitor their own citizen-donators and their charitable monetary contributions to the various Muslim groups. The US was the ones in the past to do the monitoring-not so now. Obama has played blocker for all Muslim-especially Saudi activities and cover-ups.

  • American with a birth certificate

    Hello America,If obamacare is so wonderful,then how come obama and the rest of the white house are exempt?Why don’t our elected officals understand that we the people voted them into office to do the very best job possible for America and the American people and not to get kickbacks into their offshore bank accounts from earmarks and uncontested government contracts from there friends and other special interest groups.The democrats led by obama and reid and pelosi think we Americans are sooooo stupid we do not see through there lies and scams. okay,lets just vote these democrat commies out of office and get some people who love our nation in the white house.

    • http://aol bryan

      I agree with you. What about the 5 billion dollars the unions are getting from this pile of crap. America better wake up fast.

  • Lostwages

    Obama in all of his presidential extravaganzas has yet to pay any attention to the constitution or the people of this great nation. As seen most recently in his denial of the need for the approval of congress to go to war against Libya. The same is true when you look at ObamaCare, Obama taking the position of president of the U.N. Security Counsel, and Obama’s lack of respect for the laws concerning our borders. He’s given wavers to 128 corporations for ObamaCare as if he is a dictator instead of a president. We all place blame on Obama for these actions, which is well placed. But everyone in congress and every American should take blame for allowing him to continue as a one person show in a country founded by so many. Until the people push their representatives to keep Obama inline, he will continue to do as he sees fit! With this continuance, the constitution, we the people and the laws of the land are nothing more than a door mat on the front porch of the White House.

    • tooty52

      And not one person in congress had a light come on to say “Gee, can he do that?” Duh!!Whatever you do by all means don’t rock the boat and get him mad at you for questioning his methods.

  • Guy Smith

    Mr. Davidson is in error when he says the House of Representatives have sole authority, under the Constitution, to initiate spending bills. He cites an article by Walter Williams in which Mr. Williams points out correctly that the Constitution requires all taxing bills to originate in the House.

    Otherwise it seems to be a good article.

  • Budman68

    While gay marriage may not be in the constitution, “equal protection” IS. Apparently that means nothing when it’s something the right does not like.

    • Dean

      There are many disgusting acts that don’t deserve equal protection! If you want to marry pig in your backyard go ahead. Don’t think you can force me to honor and respect your actions! That’s between you and your god. I know my God, doesn’t acknowledge it and neither do I!

    • Lostwages

      So what does “equal protection” under the law have to do with two people of the same sex wanting to be considered married? Marriage under the law is the union between a man and a woman. As far as I know, no one has tried to stop that. So, maybe gay marriage is not in the constitution because the constitution was, as this country was, founded under Gods laws, not the whims of some others wishing to break Gods laws!

    • Lostwages

      As for your point about people on the right, are you trying to suggest that everyone on the left thinks gay marriage is OK, or that they are all gay? Either way I think you’re wrong, I have yet to see the point confirmed that no one on the right is gay either! Some people do and say funny things just for the attention of others, I think it stems from a bad childhood!

    • Randy131

      It means nothing to people of the right or the left if it goes against GOD’s law, for this is still a Christian nation, and the reason Gay marriage is declined everywhere it is voted on, every state so far. Its not a right that is being usurped, but a definition that is being established as to who fits in the description of a societal act, and the reason for it and its benefits. But by making something into what it is not, the liberals can garner some votes and villify their opponents to a small, but vocal, minority of moral degenerates. Its all that simply, no rights involved.

    • http://na John Mc Clain

      Equal protection is ok..just not marriage!

    • http://zamzuufreeagent.com/touristatravel dodger

      Oh, go suck on a…Bud…man.

    • http://zamzuufreeagent.com/touristatravel dodger

      Using your logic, a person’s lifestyle would be Constitutionally protected because of “equal protection” under the law. So, if you are a pedophile or a sadist who gets off by inflicting injury on others, by your logic, your lifestyle choice should be protected? I don’t think so!

    • Patriot77

      Hey, just because you are a homo does not mean that YOU have special privileges! You have the right to “MARRY”, just like anyone else. You do NOT have the right to re-define the meaning of a word–MORON!

    • azwayne

      You were removed because your thought is not worth discussing. First, the two words gay and marriage can’t go together in a sentence or thought. Go play in your cesspool and leave citizens alone. Haven’t got time for your dribble.

    • Lessons from the Past

      Call a homosexual: a homosexual – stop stealing words. I do not see anything gay (happy) about being a homosexual. Queer would be more descriptive!!

      As a country we do not allow three people to marry. So, as a country we do not have to allow two people of the same gender to marry!

      Let us put the homosexuals back in the closet with the other things we hide from public eyes!

      As far as the topic of Homos adopting children. I believe the Children have a right to a NORMAL family one female mother and one male father!!

  • Randy131

    There needs to be a concerted and organized effort around the nation to recall or impeach these psedo-legislator judges, first federal, then state, and finally local. Otherwise we will never be able to take this country back, no matter who we elect to public office, if appointed Judges are allowed determine and set the law to their own political whims. This is a task I wish the Tea Party would take up and organize for the people around the country, inbetween election cycles. It is not easy, but it can be done, the people just need to be appraised of the procedures to do so. Every Justice, even the US Supreme Court Judges, can be recalled or impeached, even if they were appointed for life.

  • MadArky

    IF the Bummer is impeached, we would probably have to continue paying his worthless backside when we finally get him out. Our Representatives can remove him from office if they can summon enough guts to do it. He has committed so many violations of our Constitution the list should be impossible to refute all of them. If that doesn’t happen soon I will have major trouble voting for any incumbent in ANY election. Come on TEA PARTY !

  • http://aol.com sean murrey

    i sawchis reelection video i turned it off before it finished i just about threw up.i cant stand that pos.

  • Yellow Horse

    Unless obama pays off the supreme court, it will be repealed!! Two years wasted on this garbage!! And our country is in the worst condition that it has ever been!! Thanks obama??

  • R. Cook

    The term “activist” explains itself! If the Constitution was used as it was originally intended. There would be no reason to be an “Activist”.

  • ARMYOF69

    That judge should be given a medal for representing justice well.

  • jaycee

    The article is in error. Judge Vinson did not issue a stay. It was all twisted by the left. Again Judge Vinson did not issue a stay and this article needs to be corrected. During the last week of the time frame the judge gave them to file an appeal, they scrambled to get it done before the deadline. They filed the appeal a day before his order ran out. It was done silently. No media fan fare, because this sick Usurper had been embarrassed. Now its time to impeach this liar, this hack, this communist, this Pig. Its sad that I used the term pig. They don’t deserve to be associated. But don’t hold your breath waiting for the Repubics to do anything. Boehner is a looser right along with Cantor, McConnell and the rest of the RINO’s in charge.

  • tooty52

    What kind of fraternity do these people belong to in Washington that not one person will stand up against this administration and say ENOUGH all ready. They will not step up to the plate and even try to get this country back. It’s like we are the only ones that see what is happening to this country and everyone else who CAN do something is completely oblivious to the devestation going on around them. Do these people not understand or see what Obama is doing right under their nose? Isn’t there anybody out there that can help us get this country back to abiding by the constitution and impeach those won’t even acknowledge one exists???????????

  • MyTooCommonSense

    Nathaniel Davidson’s wrote, “Yet this should be a good time for the House, which under the Constitution initiates all spending bills, to defund implementation, until and unless Judge Vinson’s ruling is overturned.”

    The problem, as we’ve recently learned, is that the sneaky bastard’s who wrote the Obamacare National Health Care Enema circumvented Congress and the Constitution of the United States by PRE-FUNDING IT thereby making Congress superfluous. That’s why Nancy Pelosi obtusely stated “We have to pass the bill so you can find out what is in it” before the bill hit the House floor only hours before it was voted on.

    The Democrats had a super majority so the Republicans couldn’t prevent its passage even if they wanted to.