“I can’t believe you ruled against my health reform,” was the caption below President Obama on a political cartoon making the rounds earlier this week. The response from the judge he directed his comment to, was, “I can’t believe you taught constitutional law.” In light of some politically charged comments directed at the Supreme Court by Obama earlier this week, anyone with any sense of history and legal precedent had the judge’s comments echoing through their minds as well.
Obama on Monday, answering a question about the Supreme Court hearings on his health-care plan the previous week, said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”
“Unprecedented, extraordinary step of overturning a law.” For having purportedly taught “constitutional law” he’s either startlingly ignorant of it, or he’s prevaricating for the political spin. Andrew Rosenthal of the New York Times described Obama’s remarks as “utterly inept,” many others were even less kind. The Supreme Court has overturned, or ruled congressional legislation unconstitutional, dozens of times, even as recently as two years ago with the landmark Citizens United v. Federal Election Commission which struck down portions of the McCain-Feingold Campaign Reform Act.
How about Obama’s shot across the bow of the Supreme Court calling them an “unelected group of people?” They’re appointed, as he well knows, but this is his disingenuous way of mitigating the pejorative political impact of a possible ruling against his signature legislation. This is odious intimidation from the President of the United States.
The irony of this posturing is only magnified when we realize, as the Huffington Post reminded us this past week that in 2008 candidate Obama campaigned against Hillary Clinton’s proposed “individual mandate” in part because it was “unconstitutional.” Go figure!
Even more stupefying is Obama’s inability to distinguish between judicial review, a judicial precedent established in 1803 with Marbury v. Madison, and “judicial activism.” What the Supreme Court is doing now with a pending ruling on the constitutionality of Obamacare is clearly within the purview of the judiciary branch as delineated in Article III of the Constitution and according to precedent. Judicial activism, however, goes beyond determining constitutionality, and essentially creates law from the bench from their ruling. A perfect example of judicial activism is the case of Roe v. Wade, where the due process clause from the 14th Amendment (granting full citizenship rights to former slaves) was convoluted to such an extreme as to justify abortion from an assumed “right of privacy.”
If not such a serious matter, Obama’s reference to Obamacare being passed by “a strong majority” would be comical. It passed the House by a mere 7 votes, 219-212, and the Senate by one vote! What I would call a “strong majority” is the Senate rejecting Obama’s ludicrous budget last week 97-0, and the House’s similar 414-0 vote.
Much of what Washington has done the past several decades would be considered unconstitutional if our founding legal document, the Constitution, was interpreted literally. For example, the difference between “promote the general welfare” which is what the Preamble to the Constitution says, is vastly different than “provide for the general welfare,” which seems to be the tortuous interpretation made by those who think the Constitution is a “living document,” hence, not to be interpreted literally.
Obama and the advocates of Obamacare maintain that the “individual mandate” to own health insurance is based in the commerce clause of the Constitution. Yet when you read Article I Section 8, it says Congress is to “regulate commerce…among the several states…” Regulate, in 18th century English, meant to “keep regular or even,” or “prevent obstruction.” It is beyond logic to presume that government can force all citizens to buy something based on that definition, even broccoli, as Justice Scalia indicated during oral testimony.
Most contemporary interpretations of the Constitution are flawed with the Etymological Logical Fallacy, which erroneously postulates that the original historical meaning of a word or phrase is necessarily similar to its present-day meaning. Perhaps the best thing we could do is provide everyone in D.C. with an Oxford English Dictionary, which provides the etymological roots, context, and usage of words in delineated historical timeframes.
Literalism is critical to the implementation of our entire legal code. It seems illogical to presume that our founding legal codex, the Constitution, should be interpreted any less literally.
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