The 'Judicial Activism' Ploy
Thomas Sowell
Now that two different federal courts have declared ObamaCare
unconstitutional, the administration's answer is to call the courts guilty
of "judicial activism."
Barack Obama has a rhetorical solution for every problem. Remember the
repeated claims of "shovel-ready" projects that needed only federal stimulus
money to get started? Last year the President quietly admitted that there
were not many "shovel-ready" projects, after all.
But the phrase served its political purpose at the time- and that was
obviously all that mattered. Now, in the wake of rulings by two different
courts that ObamaCare is unconstitutional, rhetoric is being mobilized
again, without any fussy worries about facts.
"Judicial activism" is a term coined years ago by critics of judges who make
rulings based on their own beliefs and preferences, rather than on the law
as written. It is not a very complicated notion, but political rhetoric can
confuse and distort anything.
In recent years, a brand-new definition of "judicial activism" has been
created by the political left, so that they can turn the tables on critics
of judicial activism.
The new definition of "judicial activism" defines it as declaring laws
unconstitutional.
It is a simpler, easily quantifiable definition. You don't need to ask
whether Congress exceeded its authority under the Constitution. That key
question can be sidestepped by simply calling the judge a "judicial
activist."
A judge who lets politicians do whatever they want to, whether or not it
violates the Constitution, never has to worry about being called a judicial
activist by the left or by most of the media. But the rest of us have to
worry about what is going to happen to this country if politicians can get
away with ignoring the Constitution.
The Tenth Amendment to the Constitution says that the federal government can
do only what it has been specifically authorized to do by the Constitution.
Everything else is left to the states or to the people themselves.
Nevertheless, back in 1942, the Supreme Court said that because the federal
government has the right to regulate interstate commerce, the Department of
Agriculture could tell a farmer how much wheat he could grow, even if the
wheat never left his farm and was consumed there by his family and their
farm animals.
That case was a landmark, whose implications reached far beyond farming. If
the meaning of "interstate commerce" could be stretched and twisted to cover
things that never entered any commerce, then "interstate commerce" became
just a magic phrase that could make the Tenth Amendment disappear into thin
air.
For more than half a century, courts let Congress do whatever it wanted to
do, so long as the politicians said that they were regulating interstate
commerce.
But there was consternation among politicians and the media in 1995, when
the Supreme Court said that carrying a gun near a school was not interstate
commerce, so that Congress had no power to regulate it- even though states
had that power.
Howls of protest went up from politicians and the media because the Supreme
Court voted 5 to 4 in favor of an ordinary common-sense reading of the
Constitution, instead of the clever word games that had been used for so
long to circumvent the Tenth Amendment.
ObamaCare is another piece of Congressional legislation for which there is
no federal authority in the Constitution. But when someone asked Nancy
Pelosi where in the Constitution there was any authority for passing such a
law, her reply was "Are you kidding?"
Two federal courts have now said that they are not kidding.
The ultimate question is whether the Supreme Court of the United States will
back them up. That may depend on how soon the case reaches the Supreme
court.
If the issue wends its way slowly up through the Circuit Courts of Appeal,
by the time it reaches the Supreme Court, Obama may have put more of his
appointees there- and, if so, they will probably rubberstamp anything he
does. He would therefore have done a complete end-run around the
Constitution and be well on his way to becoming the Hugo Chavez of North
America.
To find out more about Thomas Sowell and read features by other Creators
Syndicate columnists and cartoonists, visit the Creators Syndicate web page
at www.creators.com. Thomas Sowell is a senior fellow at the Hoover
Institution, Stanford University, Stanford, CA 94305. His Web site is
www.tsowell.com.
COPYRIGHT 2011 CREATORS.COM
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