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Balancing Power in the Age of Obama

The opinions expressed by columnists are their own and do not necessarily represent the views of
These past few days have given us a lot of fireworks, between the Supreme Court decision upholding Obamacare and the celebration of Independence Day. With the fireworks came a serious look at the Founding Fathers -- and what they had to say about governance. The pundits rent the air with commentary.

Among the wise men quoted, as always, was Alexis de Toqueville, the perceptive visitor from France whose book, "Democracy in America," told us a lot about who we are, about the separation of powers and the significance of the Supreme Court. "No other nation ever constituted so powerful a judiciary as the Americans," he observed in 1835. Without the Supreme Court justices, the Constitution would be a "dead letter."

Americans have always argued about whether the Supreme Court has assumed too much power over our lives, but de Toqueville believed it was designed to protect the nation in special ways, giving real meaning to the pivot points in the balance of powers: "It is to them that the executive appeals to resist the encroachments of the legislative body, the legislature to defend itself against the assaults of the executive, the union to make the states obey it, the states to rebuff the exaggerated pretensions of the union, public interest against private interest, the spirit of conservation against democratic inability." Whew.

Not only is this power immense, he observed, "but it is power springing from opinion." That requires the justices to act as statesmen and to be in touch with "the spirit of the age." But what does all that mean today? The ideological debates over Obamacare reflect two opposing spirits of the age.

The president, modest as always, refers to the health care law as "the law I passed." (What does Congress have to do with it?) He says he should spend more of the people's money (while damning the rich for keeping too much of their own), ultimately laying a tax penalty on those who chose not to comply with his law. The other side of the polarized viewpoint is eager to limit government spending against the president's raid on everybody's pocket and purse, free the public from the clutches of the unelected bureaucrats and increase individual liberty for private enterprise.


In the midterm congressional elections only two years ago, many of the winners tried to curb the overreach of Obamacare, but despite the Republican blowout in the House, they didn't have the numbers in the Senate. The House vote this week to repeal Obamacare was largely symbolic.

If the current polls are correct and large majorities of voters want the law repealed, it's possible the congressional numbers against Obamacare will grow. Conservatives rail against Chief Justice John Roberts, but they agree with his commonplace observation that elected leaders who disappoint voters can always be thrown out of office. I have no idea whether Roberts wrote the majority opinion to save the court from cries of "politics" and avoid the perception that the court was legislating from the bench, or whether he thought the court had become too conservative. Whatever his motivation, he has put the ultimate decision to the voters on Nov. 6.

But we still need to know everything that's in the legislation. Nancy Pelosi's remark that Congress had to pass the legislation to find out what was in it was both true and utterly cynical. Now we have another opportunity. Democratic congressional candidates who were loathe to talk about what was in it before they voted will have to defend their votes at home. That's not good news for Barack Obama.

A Newsweek/Daily Beast poll of likely voters taken after the Supreme Court upheld Obamacare found that 58 percent of those polled now disapprove of the president's performance on health care; only 37 percent approve.


If there's a new president after November, and if Mitt Romney follows through on his promise to "repeal and replace," Roberts will make his point. If that happens we'll get a clearer understanding both of who we are, what we want and what the future holds. If, on the other hand, we keep the president who has visited all the grief on us, we'll get what we deserve. Pogo the Possum, the comic-strip philosopher from Georgia's Okefenokee Swamp -- "hard by that rare native tree, the Presidential Timber, struck down in mid-sprout by the jawbone of a politician" -- said it best: "We have seen the enemy, and he is us."

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