Mona Charen

It has traditionally been liberals, not conservatives, who have looked to the courts to implement their policy preferences. Whether it was racial and sex preferences, abortion, gay marriage, capital punishment or the "rights" of illegal aliens, liberals have attempted to move the country left by judicial fiat.

Judges, after all, are highly educated elites. The political views of people with advanced degrees tend to be liberal. It's far easier to seduce a few robed lawyers to issue congenial rulings than it is to undertake the hard and lengthy work of persuading millions of voters to elect people who agree with you.

Conservatives have been so battered by adverse court decisions over the years that we'd become anti-courtists -- toying with ideas to reduce the judiciary's scope (as Newt Gingrich mentioned during the primaries), emphasizing the antidemocratic nature of judicial usurpation of legislative functions and stressing the importance of judicial restraint.

But Supreme Court rulings in the past few years -- since John Roberts became chief justice -- had suddenly seemed to open up sunlit vistas of conservative victories on important constitutional questions. Not that conservatives longed to make school prayer mandatory or the government share of gross domestic product above 20 percent unconstitutional. Conservatives simply long for a return to judicial modesty and constitutionalism. In the gun control decision, the court affirmed that the Second Amendment protects an individual right to gun ownership. In Citizens United, the court upheld First Amendment protections on political speech. Was a decision putting limits on the infinite expansion of Commerce Clause power by Congress so unthinkable?

The case seemed incredibly strong. If, as Justice Kennedy put it during oral argument, Congress can compel participation in commerce in order to regulate it, what becomes of the idea of a government of limited and enumerated powers? If the Commerce Clause permits this, it permits anything.

It seemed that the Obama administration, by attempting to sneak a new tax past the public by disguising it as a mandate, had outsmarted itself. A tax would be clearly constitutional under the Congress's taxing power. A mandate to purchase a product clearly is not. The administration had contradicted and embarrassed itself by arguing first that the mandate was not a tax and then that it was.


Mona Charen

Mona Charen is a syndicated columnist, political analyst and author of Do-Gooders: How Liberals Hurt Those They Claim to Help .
 
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