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.
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”.
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”.