A Brake, Not An Accelerator

Posted: Apr 02, 2012 7:29 PM
Even the WaPo's Ruth Marcus -- a fan of ObamaCare and the individual mandate -- has come out against Obama's attack on the Supreme Court.

Interestingly, however, she deplores the president's tactic as validating what she views as an unwarranted conservative critique of "judicial activism."

What Marcus and others apparently don't get is that the conservative objection to judicial activism primarily involves courts creating or finding new "rights" in ancient documents -- often, those that just happen to validate contemporary liberal prejudices and which can't quite muster the popular support to win legislatively (i.e., at the ballot box).  Thus, for example, even conservatives who might not object to gay marriage as a policy -- or if it is voted in at the ballot box -- rightly abhor courts simply decreeing, by fiat, that the "right" to gay marriage has existed all along in state constitutions drafted long ago.

To use a car analogy, conservatives primarily view the courts not as "accelerators" -- here to rush us into a "brave new world" whether the people want it or not -- but as "brakes" . . . that is, the mechanism to slow or prevent government overreach (and, after all, securing liberty -- that is, the right to freedom except in the areas where federal government had been giving explicit power to legislate -- was a motivating force behind the Constitution). 

Polls show that a majority of Americans hate ObamaCare.  Even if they loved the individual mandate, however, the role of the courts is to ensure the rights (and freedom) of the minority against the tyranny of the majority (at least where that power would be exploited to take away our natural rights), as liberals have never hesitated to remind us.

Liberals like President Obama have been big fans of creative judicial interpretations that have yielded them policy victories they couldn't secure at the ballot box.  Now, the whining about "judicial activism" is just sour grapes.  Hate to tell you -- even in this day and age, there may be some limit on the government's power over our lives.  Along with the "accelerator" we've seen in the likes of Warren Court jurisprudence, there may be some "brake" in the judicial system yet.

Update:  At last week's oral arguments, President Obama's solicitor general struggled to come up with a "limiting principle" for the expansion of federal power the administration is advocating: If citizens are subject to regulation simply as a result of existing (in this case, when they are not in fact participants in the health insurance market), what activity could the feds not regulate?  Good question.  Perhaps the erstwhile constitutional law lecturer in The White House would care to provide us with a credible, principled answer to this question before he casts aspersions on the good faith and integrity of the justices.