December 2009
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Quote of the Day 12/14/09

The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement; the consequences would be the substitution of their pleasure for that of the legislative body.

Alexander Hamilton – Federalist 72

One of the arguments against Obamacare goes like this: “The whole thing is unconstitutional since Congress has no authority to compel individuals to purchase health care insurance.”

While this point of view may be intellectually interesting, it is one that I fear more than most. The Supreme Court is supposed to decide the question of constitutionality by referencing the actual Constitution. In other words, when the framers wrote the document, how were these phrases and words commonly understood? And does the law under review comply with that understanding?

Unfortunately, this is a responsibility that the court has by and large abandoned, replacing the question of constitutionality with the question of how laws comport with their own vision of what is best for the country.

While there is a plethora of examples, only a few are needed to make the point. The clearest example would be Furman v. Georgia (408 US 153) in 1972, where the court ruled the death penalty unconstitutional. Two of the justices in that 5-4 decision declared that it was unconstitutional under any circumstance, despite the fact that the constitution itself clearly allows for the application of the death penalty. In other words, the constitution can implicitly forbid what it explicitly permits.

Other examples include Bolling v. Sharpe (347 US 497), in which the court applied the wording of the 14th amendment to the 5th amendment, and that there is no legal distinction between “due process” and “equal protection;” and Buckley v. Valeo (424 U.S. 1), a 1976 decision upholding restrictions on free speech.

When George W. Bush signed the Campaign Finance law, he did so knowing that parts of it were unconstitutional, and he figured that the Supreme Court would strike those parts down. Unfortunately, the Court figured that since the President abdicated his responsibility and signed the bill, they would abdicate theirs and uphold it.

Finally, in Kelo v. City of New London, (545 US 469) the court decided in 2005 that the takings clause of the 5th amendments (nor shall private property be taken for public use without just compensation) really meant that it was OK to take property, not for public use, but for the private use a developer whose buildings would increase tax revenues to the city.

In an age where the plain language of Constitution can be subverted by such pretzel logic as this, can the Supreme Court be trusted to protect the American people from the machinations of Congress and BHO? I doubt it.

So don’t fall into the trap of thinking that just because the health care abomination is unconstitutional, the court will save us from the congress. Only the voters can save us from Congress. 2010 cannot come soon enough.

fiat lux!

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