Tuesday, February 14, 2012

The land of the free?

Perhaps not much longer. Mark Steyn points out the real, insidious purpose of Obama Care – it is an assault upon individual freedom that “ought to have been stark staring obvious”.
Given the willingness of courts to torture the language of the Constitution to endorse whatever novelties tickle their fancy, is it so hard to picture five judges concluding that the Commerce Clause now extends to “tooth-level surveillance”? Michael’s right. Even in as overly legalistic a society as America has become, what sort of freeborn citizen bets his liberties on Anthony Kennedy?
Correct in every detail. Even more worrisome than the transformational socialism of Obama Care is the damage Obama could do to our country through his power over judicial nominations in a second term, up to and including the Supreme Court. This danger ought to be sounding alarm bells everywhere. And people concerned about the preservation of their traditional rights need to start thinking about what happens when a future court begins a wholesale reinterpretation of the Constitution that seeks to preserve the form of the vessel while emptying it of any significance. My own view is that the Supreme Court is not the legal, secular equivalent of the College of Cardinals, let alone a kind of collective pontiff. When our rights become threatened by an attempt to cloak liberal dogma in the language of the law, and our liberty rests upon the decision of a single, tie-breaking (and often capricious) Supreme Court justice, we would do well to recall the warning of Thomas Jefferson, in a letter he wrote late in life to a Virginia judge:
For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation…The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.
In short, it is the people – not the Supreme Court, and certainly not the president – who are the ultimate guardians of our constitutional rights.

2 comments:

Michael Lonie said...

"John Marshall has written an opinion. Now let him enforce it."

That was Andy Jackson's comment after Chief Justice Marsahl found against the government in the Indian Removal Cases. A popular president, carrying out a popular policy, might again ignore the Supreme Court, leaving it to twist in the wind. The danger of that is one reason John Marshal used the power of declaring laws unconstitutional very rarely after he established the principle in Marbury vs Madison.

Of ocurse, Jackson's action is an undesireable precedent, from a civil liberties POV. And people have come to esteem the SC more in the years since Jackson's presidency than they did at the time. Still, a popular president might also ignore a particularly egregious SC decision, for example one that plainly contravened the real words of the Constitution.

Your point about the people is also a good one. The SC does keep its finger in the political wind. That is why the SC changed its tune of Roosevelt's New Deal legislation, and even ended up deciding ridiculous cases in the government's favor, like the one that said the Federal government could regulate a farmer's wheat crop, even though he sold none of it in interstate commerce and raised it for his own consumption only. For another absurd decision, remember Kelo. The public's reaction led to many states passing laws to prevent such corruption.

JeffS said...

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Says it all, really. And I don't care what the NYT thinks.