The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence." — John Adams”
The awful truth is beginning to dawn on the left. The magic words on which they have relied to make government grow may not work anymore. The consequences could be catastrophic for progressives. So it isn't hard to understand why the progressives would visualize a Supreme Court ruling against ObamaCare as "unprecedented."
The case of Wickard v. Filburn is one of the most ludicrous decisions in the history of the Supreme Court. Secretary of Agriculture Wickard attempted to enforce the Agriculture Adjustment Act (AAA) of 1938, which set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. The secretary levied a fine on Roscoe C. Filburn for exceeding his quota despite the fact that none of Mr. Filburn's wheat was sold outside his state, and the portion sold (he used some himself) did not exceed the quota. The Supreme Court ruled in wartime 1942 (overturning a lower court ruling) that Congress could regulate the production of wheat intended for personal use and not placed in interstate commerce. In other words, the court defined non-commerce (personal consumption) as interstate commerce.
Thus, it is not surprising, then, that the lawyer arguing for ObamaCare might expect the court to redefine a non-tax as a tax (wink). After all, the court's predecessors redefined non-commerce as interstate commerce. Fortunately, the justices didn't seem to buy it.
From the 1942 ruling on, the progressives discovered that all they had to do was simply repeat the magic words, "The Commerce Clause (Article I, Section 8.3)," and the courts would approve nearly everything the Congress wanted. With the oral arguments on ObamaCare, the left had every reason to expect the same result they had seen for the last 70 years. Any other result for them would of course seem "unprecedented."
Another reason why the progressive sees an overturn of ObamaCare as "unprecedented" is because the Court may actually consider the Constitution more important and undo the legal precedent (overturn, or "unprecedent" the precedent). Once a court ruling like Filburn sets a "precedent," the words in the Constitution are tossed into the background. It is almost as if precedent erases portions of the Constitution. To the extent that that happens, we become not a nation of laws, but a nation of men who have ruled contrary to the law.
What has truly been "unprecedented," compared to the first 150 years of general adherence to the principles of the Constitution, is the massive growth and intrusion of the federal government based largely on the three magic words. The abuse of the Commerce Clause has become so entrenched that it is likely that several of the Supreme Court Justices will rule that individuals can be forced into commerce they don't want.
What is truly "unprecedented" is a 2,700-page coercive law delegating the powers of Congress to the executive branch. James Madison warned of this in Federalist Paper No. 62 when he asserted:
“The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.”
Even a cursory reading of the Founders' writings and the Constitution should be enough to understand that this is not what the Founders had in mind. In fact, it is precisely what the Constitution was supposed to have prevented. The Constitution is for the most part clearly written and does not require a law degree to be understood. The law degree seems to be needed to pretend that we are still adhering to the Constitution.
Some progressive members of the Supreme Court do not seem to hold the Constitution worthy of adherence. When Obama-nominated Elena Kagan was dean of Harvard Law School, she dropped the requirement that Harvard Law School students study constitutional law. As was widely reported, Justice Ruth Bader Ginsburg stated in an Egyptian TV interview that "I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012."
In 2006, after the changes were proposed by Kagan and approved by the faculty committee evaluating the suggestions, the school published a news release to explain the changes and Kagan offered the following justification for the de-emphasis of constitutional law studies:
“From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems. Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law.”
Last week, seeing that his signature legislative achievement was in jeopardy, Barack Hussein Obama fired a shot across the bow of the Supreme Court as it considered the constitutionality of his so-called "Patient Protection and Affordable Care Act" (a.k.a., ObamaCare). Obama warned the court against "judicial activism."
"I am 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. I just remind conservative commentators that for years what we have heard 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 am pretty confident that this Court will recognize that and not take that step. That's not just my opinion, that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law."
Actually, as Obama knows well, the Supreme Court's consideration of ObamaCare is not an example of judicial activism as Obama erroneously claims, unless the Court actually upheld the institution of socialized medicine as constitutionally compliant.
In fact, SCOTUS is exercising appropriate judicial review as outlined in Article III of our Constitution, and established as precedent in 1803 with the Court's Marbury v. Madison decision under Chief Justice John Marshall. In that fundamental case, Marshall wrote:
"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. The framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature."
Marbury v. Madison is often derided as the beginning of the end of Liberty. However, it certainly was consistent with our Framers' intent, as Alexander Hamilton wrote in Federalist No. 78:
“It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
The unfortunate consequence of the Marbury precedent is that it rendered the Constitution vulnerable to broad extra-constitutional interpretation, should the courts ever become highly politicized — as indeed they did in the 20th century, from FDR forward.
Judicial review was and remains a foundational component of republican federalism and was instituted to preserve Liberty. However, as Thomas Jefferson feared when warning the judiciary could become the "despotic branch," the federal court's checks and balances have been adulterated by judicial activists who, in the words of the venerable Senator Sam Ervin, "interpret the Constitution to mean what it would have said if [they], instead of the Founding Fathers, had written it."
Thus, now, as Jefferson warned, "The Constitution [will be] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
Setting aside Obama's fallacious assertion that ObamaCare "was passed by a strong majority of a democratically elected Congress" (a 219-212 House vote with 34 Democrats defecting does not constitute a "strong majority"), his condemnation of "judicial activism" is the height of hypocrisy, given that judicial diktat is the primary tool the Left uses to amend our Constitution to comport with their political agenda. However, it should be noted that judicial activism can take the form of both judicial intervention or judicial inaction — turning a blind eye to the violation of our Constitution.
Notably, in contrast to Obama's feigned concern for judicial activism in the challenge to ObamaCare, another egregious example of his hypocritical prevarication would be his administration's failure to defend against legal challenges to the Defense of Marriage Act, which passed in 1996 under Bill Clinton's tenure. The margin then was 342 to 67 in the House and 85 to 14 in the Senate — which actually is a "strong majority of a democratically elected Congress."
Of course, congressional margins of support for a piece of legislation should have no bearing on proper judicial review and ruling on such legislation this would result in as Madison stated in Federalist 47; “tyranny of the majority.”
Obama's warning in regard to the High Court's review of ObamaCare handed Republicans an outstanding opportunity to score a touchdown with a national discourse on the subject of appropriate judicial review v judicial activism. Unfortunately, Republicans fumbled the ball, perhaps because too many old-guard Beltway-types have been drinking Potomac water for so long that they can't readily distinguish the difference between the proper constitutional role of the Supreme Court and judicial activism — or worse, they can distinguish the difference, but choose not to because they support judicial activism when it advances their political agenda.
Constitutional scholar Mark Levin draws the distinction between constitutional judicial review v judicial activism as follows:
"Originalists believe that the powers enumerated specifically in the Constitution are the only powers of the federal government, unless the Constitution is formally amended. Originalists generally interpret provisions of the Constitution (and, when applicable, statutes) narrowly. In other words, these judges attempt to look at the plain meaning of the law. They believe in a clearly delineated separation of powers. A judicial activist, on the other hand, construes the Constitution broadly and rejects some of its provisions outright (or gives them superficial acknowledgment) if they interfere with the desired outcome. In essence, activist judges make, rather than interpret, the law."
Levin concludes, "When the judiciary utilizes outcome-determinative reasoning, rather than adhering to the Constitution, the result can be catastrophic. The extreme left has scored few victories at the ballot box. They must rely on the tyranny of an activist judiciary to advance their policy agenda."
I would argue that the result of judicial activism is, inevitably, catastrophic. Tyranny is the certain consequence of judicial activism (rule of men), and history records no instance of tyranny that was not catastrophic.
On the authorized role of SCOTUS review, Robert Bork, one of the finest jurists of the 20th century, wrote:
"Judges may look to the text, structure, and history of the Constitution but are prohibited from inventing extra-constitutional rights. Originalism seeks to promote the rule of law by imparting to the Constitution a fixed, continuous, predictable meaning."
The bottom line is this: Our Constitution established a republican form of government predicated upon Rule of Law. Endeavoring to undermine our authentic Constitution, Leftist legislators and judicial activists, in abject violation of their sacred oaths to "support and defend" our Constitution, are replacing it incrementally with their so-called "living constitution." They are slowly digging away at our Republic's foundation of Liberty assured by Rule of Law, and they are backfilling with the tyranny of a democracy.
The most influential Leftist organization in the nation is the Democrat Party, and its activist cadre organizer, MoveOn.org, has issued the following charge: "It's time to reclaim Democracy. It's time for a 99 percenter Spring." Make no mistake — they are serious.
The same Supreme Court justice took the following oath of office:
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The justices who ruled against Filburn had taken the same oath.
Had the ghost of Roscoe Filburn watched the oral arguments on ObamaCare, he might have thought the magic words were no longer working, having been stretched to the breaking point. That is exactly what the progressives are afraid of.
Dire warnings of the rise of socialism have emerged in every election cycle since the 1960s, but this election is the most critical in the history of our Republic. If we do not muster enough support to defeat the socialist propaganda of the Left, they will have four more years to fully implement Democratic Socialism, and its eradication will be unlikely, short of another call to arms for the current generation of American Patriots.