With ObamaCare in Danger, Liberals Decide the Court’s Power Should Be Limited

Jonathan S. Tobin | @tobincommentary
03.28.2012 - 1:15 PM

For most of the last century, liberals have preached that the Constitution is a living document that needs to be interpreted and re-interpreted to fit the needs of the times. In the name of this legal faith they have championed a vast expansion of government power as well as the enumeration of various rights that are nowhere to be found in the actual text of the document. Generations of liberal activist judges have consistently thwarted the will of both the legislative and executive branches of government without a blush as they imposed their own ideas about every conceivable issue on the country. In doing so they changed the way we think about government and established its presence in our lives in ways that the founders would have thought unthinkable.

But now that there is a possibility that a conservative majority on the Supreme Court might rule ObamaCare unconstitutional, liberal thinkers are doing a 180-degree turn. In the wake of yesterday’s Supreme Court hearing on the case in which it was apparent that several justices were skeptical about the government’s argument that it could force citizens to engage in commerce which it could then regulate, the editorial writers at the New York Times were up in arms at the mere notion that the court would have the temerity to overturn a bill passed by Congress. As the Times put it, “the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.” Now that the shoe is on the other foot, liberals are shocked at the notion of judges stepping in to teach the legislature a lesson.


The irony of this outrage is clearly lost on the Times and the rest of President Obama’s cheering section in the mainstream press. The Times believes if the court overturns ObamaCare it will be a “willful rejection” of “established constitutional principles that have been upheld for generations.”

In a sense that’s true. For more than a century, liberal judges trashed the original meaning of the Commerce Clause and twisted it to allow the federal government the right to intervene in virtually any activity that struck its fancy. The individual mandate is an unprecedented expansion of the “principle” of untrammeled federal power. But it certainly is well within the scope of previous decisions that created the leviathan in Washington that is sinking the nation in debt.

But the idea that all precedents must be respected is not one that any serious legal theorist can support. The passage of ObamaCare is one such instance. The idea that the court must “hew to established law” would have prevented every famous liberal victory in which the expansion of government power was justified. Times change and the law sometimes must change with it. If the court was able to justify the expansion of the scope of Washington’s power in the 20th century in order to do what a majority of judges deemed to be good, the same principle can allow the courts to step in and say that the current situation demands that someone establish clear limits on federal power.

The genius of our constitutional system is that the checks and balances that the three braches of government can exercise serve to prevent the aggregation of too much power in one at the expense of the people. The truth is the court has always crafted the law to “argue the merits of the bill” as Justice Breyer said of those arguing against ObamaCare. In the past, this worked in favor of liberal goals. Today, it works against them.

We don’t know whether the panic on the left about the court’s inclinations on this case is justified. We certainly hope so. But the idea that the Supreme Court must forebear from striking down this unconstitutional power grab by Washington because to do so would transgress the limits of its power is not a serious argument. Especially when it comes from those who have long held that the court can exercise any authority it likes so long as it is promoting liberal objectives.

With ObamaCare in Danger, Liberals Decide the Court’s Power Should Be Limited « Commentary Magazine