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  • Dear Liberals, Originalism Is Not Activism

    Obamacare’s day in court didn’t go so well, and liberals are in a panic. Sensing the demise of Obamacare, they have begun to preemptively accuse the conservative justices of “judicial activism.”

    But the more they try to explain how striking down Obamacare would be “judicial activism,” the clearer it is that the left thinks “judicial activism” is a failure to advance liberalism.

    Case in point: On Monday, Obama “warned” the Supreme Court against judicial activism, saying that overturning his health law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” But every law that has ever been struck down has had the majority support of the legislature (a constitutional requirement). Thus the Court’s striking down Obamacare could not possibly be “unprecedented” or “extraordinary.”

    Obama then claimed that striking down Obamacare would be “a good example” of judicial activism since it would mean that “an unelected group of people would somehow overturn a duly constituted and passed law.” It is certainly a relief to see Obama concerned about the power of unelected officials—if only he would turn his attention to the vastly power delegated to unelected bureaucrats in executive agencies—but in this case, Supreme Court justices are supposed to be unelected in order to provide a check against the popular branches. If anything, concern for congressional will should lead the Court to strike down the entirety of Obamacare. Justice Kennedy, for example, suggested that the Court would show more judicial restraint by throwing out the entire law rather than having the justices choose which particular parts of the law could stay without the mandate.

    Obama’s claim that Obamacare is sacrosanct because it is a “duly constituted and passed law” reveals further fuzziness of logic. That a law was passed in a constitutional manner in no way ensure that it is constitutional. Congress and the President could, for example, follow the constitutional process to a “t” when passing a law prohibiting the publication of newspapers, but it would still be unconstitutional.

    Ironically, if Obama actually believed his arguments, he would have to oppose many of the left’s favorite cases, such as Roe v Wade, which struck down democratically and properly enacted laws.

    Ultimately, there are only two standards on which one can base judicial decisions: the Constitution itself or politics. If evolving political trends is the standard by which cases are decided, then justices are free to appeal to whatever spurious doctrines (constitutional “penumbras,” anyone?) further their cause, and liberals cannot complain when conservatives win the day.

    But, of course, politics was never meant to be the guiding judicial principle. Rather, judges are supposed to make decisions based on a proper understanding of the meaning of the Constitution’s text as it was written and publicly understood at the time of ratification—a method commonly referred to as originalism. Judges are activist only if (but also whenever) they make decisions not based on the text of the Constitution.

    Posted in First Principles [slideshow_deploy]

    13 Responses to Dear Liberals, Originalism Is Not Activism

    1. KJinAZ says:

      The liberals forgot about liberty and freedom. Their plan is to build a government bureaucracy to solve anything that may ail you. They would have the power to control you entire life, from what you eat to how much you exercise, and even what type of exercise. They could make you see a shrink, if they want.

      Do we really want to give that much control to anyone, especially the government? The system was working for all these years because most hospital were run by churches. The churches allowed the hospital to afford care for the indigent. Now the left who mostly don't believe in religion, or contribute to charity want to make this gift a right. We simple cannot afford to give everone a deluxe healthcare plan. Some people will struggle without insurance, but that does not give the right to the federal government to grant gifts of insurance to everyone. Liberty and Freedom do not come with a healthcare plan.

      • West Texan says:

        You're absolutely correct. Healthcare is a paid for service, not a freely inherited natural right. Socialist wannabe demagogues tell folks differently to obviously leverage more power for themselves. We can't afford another four years of their destructive pseudo-legislation and subversive policies. I only wish the Ron Paul supporters would come back to Mother Earth from their dogmatic high horse and help fellow conservatives defeat Obama this November. The only way it's going to work is through the GOP's primary nominee. It took centuries to get us into this mess, and it'll take time to get back out. It's not going to happen overnight, not even with a Ron Paul presidential win.

    2. Marc Bynum says:

      I made this point in a Facebook note in Sept of 09. Can I come work for you? :)

    3. Bobbie says:

      The president shouldn't be so low to encourage judicial activism which is what he is doing by insisting justice according to the President's intentional misinterpretation of the American peoples' constitution.

      All the President of America has to do is respect the proper meaning and purpose of the American peoples' constitution and the duty of his presidency is inherent. His violations prove more the intent on doing everything but.

    4. MarkinArizona says:

      Couldn't you just see 5 or 6 fingers being raised at the SC when he called 'em out. Yep, it's a shame that he spoiled the love fest between the WH and SC that started with his comments to them during that historic state of the union address.

    5. Expertia says:

      Obama needs to go back to law school and take "Constitution 101".

    6. Mike says:

      Just in case the 'Supreme Court" gets a wild political hair and says the Act is Constitutional AND if Romney is elected POTUS, will Romney still issue an Executive Order that will give a waiver to all 50 states on ObamaCare? I wonder……….

    7. West Texan says:

      "Obamacare" itself is a huge unprecedented federal power grab. If Obama wants precedent, he will get it if the high court completely strikes down his so called "Affordable Care Act ". FDR struggled to push his own social progressive agenda through only to be blocked initially by SCOTUS. He had to conjole the American people into accepting his centralized takeover of domestic welfare concerns. An easy task given the 1930s depressed economy. Like most socialists wannabe programs, however, there's always an unpleasant surprise hidden in the details. FDR's trickery was no different as Social Security was sold as a temporary fix to help folks back on their feet. This was obviously never the intent. FDR should have offered support to the 48 individual states so they could address their own poverty issues. That would have been the proper thing to do under our country's constitutional construct of federalism.

    8. Gator Lawyer says:

      Perhaps Obama was absent the day Marbury v. Madison was discussed in his constitutional law class. It's called federalism and separation of powers……

    9. Tonie says:

      Keep going! Please shine the light on all of his (obama's) doings. Why is he allowed to say some opinions, from reputable citizens, are false and we are not allowed to challenge him on his constant errors (Oh excuse me!!) and omissions that are lies?

      Again Foundry, thank you for printing the truth.


    10. Annie says:

      Obama does seem to get a "pass" on lots of things that Bush never did.
      As a classy ex-president, GW doesn't spout off like Clinton does either.

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