As surely everyone and their uninsured dog knows by now, the odds are better than even Obamacare’s next stop on the judicial circuit is none other than The SCOTUS. But the Supremes better stop this intolerable act, not in the name of love, but in the name of its own continuing relevancy. If the nine (or eight) men in black vote through this Obamination, anything goes – including the possible dissolution of the federal government. The Supreme Court, in effect, will be voting on whether or not people will continue to take it seriously.
There have been outrageous rulings before, but no legislation or case before the highest court has so blatantly flown in the face of Constitutionally limited government as Obamacare. The legislation has been struck down in federal court, and though the Florida judge wrote a scathing opinion, he did not write an injunction against the legislation’s implementation.
Among the Supreme Court’s worst decisions were Dred Scott, Wickard v. Filburn, and Roe v. Wade – the latter particularly because it violated state’s rights. And although all were egregious, the one under present consideration has the potential to be the biggest judicial powderkeg yet.
It is sad commentary on the country’s state of affairs that a handful of men could wield so much influence over the fates of hundreds of millions. Constitutionally limited government under the rubric of expressed powers was meant to prevent things from coming to such a head, where the future of liberty hung in the balance on such a thin thread.
Thus there is a highly relevant question regarding judicial review itself: Is the Supreme Court even empowered to determine constitutionality? Is it an implied power, as Justice Marshall argued in Marbury v. Madison?
Perhaps the best critic of our current national circumstances is someone who lived two centuries ago – Thomas Jefferson. As our third president opined to W.H. Torrance on the matter of judicial review:
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
And more decisively to William C. Jarvis:
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Finally, to William Johnson, and in terms of remedy for unjust laws:
“But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”
It should thus be understood that although practically it would be a great victory for conservatives and self-described moderates if Obamacare were to be ruled unconstitutional by the Supreme Court, not all of our hopes should rest on that potential decision. There are two more methods of recourse for the states and people to oppose such legislation. The first is nullification, which the states recently did with RealID; and the second is for the states to bring forth a Constitutional amendment that would expressly and effectively prohibit Obamacare, and legislation like it.
It is appropriate again to draw on the eloquence and wisdom of Thomas Jefferson, who foresaw the potential need for citizens to strike down unjust laws:
“Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.”
On the matter of a Constitutional Amendment:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Thus a Constitutional Convention, which many conservatives object to for fear the delegates wouldcall up some crazy amendments, is one means to redress the Obamacare problem. It should be noted that at least 38 proposals to nullify Obamacare have been brought up in different state legislature, and at least 27 oppose Obamare as a matter of policy.
More to the point, the Supreme Court will not only be voting on its own continuing relevance; should it vote Obamacare constitutional, it might as well declare itself a kangaroo court the likes of Russia’s. In addition, they will be voting on the government’s legitimacy. If it should vote the measure Constitutional, it will be effectively turning The Constitution on its head, ruling it Unconstitutional! It will be declaring its power as not rooted in any basis of law, but in the arbitrary caprice of elites. And if that is the way it is going to be, Americans are under no moral compunction to follow them in their grandiose delusions.