Tuesday, February 8, 2011

Obamacare, Tribal Law & "Judicial Activism"

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ““difficult to perceive any limitation on federal power" . . . and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Judge Roger Vinson, Order Granting Summary Judgment, Fla. v. Dept. of HHS, 31 Jan. 2011

I concur with Judge Vinson's decision completely. There is no question that, at the time of the founding, the Commerce Clause was designed solely to prevent trade barriers being erected between the states. Judge Vinson pointed out in his decision that the Supreme Court deviated from the original intent of the drafters by vastly expanding the powers of Congress under the Commerce Clause during the New Deal. But even that expansion has not been unlimited and the Court has never ruled that the Commerce Clause gives the government the power to proactively force people to take actions as a mere consequence of citizenship.

Lawrence Tribe begs to disagree with Judge Vinson in a NYT op-ed. Tribe dismisses Judge Vinson's reasoning out of hand, disingenuously calling the difference between "activity" and "inactivity" a distinction without a difference. He further opines that any claim that Obamacare is unconstitutional is purely partisan politics. Ann Althouse, herself a law professor, has a field day with Tribe's op-ed.

Tribe is very much of the "living Constitution" school, arguing that the Supreme Court justices are free to amend the Constitution per their whim as the "need" arises - and the need always arises when the left wants it to. Think Roe, Boumediene, Perry v. Schwarzanegger. The blogger at Marginal Revolution, responding to Tribe, makes a tongue in cheek argument that the living Constitution could well be used to support the right in this scenario:

“What Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.”

Heh. Perhaps we originalists should be pondering a doctrinal shift.

On a related note, Thomas Sowell does an excellent job of explaining how the left, fully in the spirit of Orwell, is redefining the term "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, 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. . . .

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