I was planning to write a post about how Obama’s recent characterization of the Supreme Court was either dumb or deceptive. But, I discovered that I don’t have too. Stephen Presser did a fine job at CNN in his opinion piece, Obama should know better on Supreme Court’s role.
Setting aside the point that the ACA did not pass with an overwhelming majority [as Obama claimed], but by a party-line vote in the Senate and seven votes in the House, and without the support of a single member of the Republican Party, the most astonishing thing about Obama’s diatribe was the fundamental misunderstanding of our constitutional tradition it revealed.
Since 1788, in the famous defense of the Constitution set forth by Alexander Hamilton in the Federalist Papers, it has been understood that it is the task of the Supreme Court to rein in majoritarian legislatures when they go beyond what the Constitution permits.
This is not, as Obama implies, judicial activism, or political activity on the part of the justices. This is simply, as Hamilton explained, fidelity to the Constitution itself, fidelity to the highest expression of “We the People of the United States,” the body whose representatives ratified that Constitution.
Judicial review is not usurpation — it is the manner in which the rule of law is preserved in this nation. It is certainly true that sometimes courts, and even the Supreme Court, have erred in their interpretation of the Constitution, and some legislative acts that clearly were permitted by the Constitution have been struck down. But if the ACA’s individual mandate is rejected, this will be fully within the legitimate exercise of judicial powers.
Call me crazy, but I think our elected officials should have a good understanding of the roles of the various branches of government and the key underlying principle of the Constitution — checks and balances on power.
It would be great if the media asked political candidates seeking Federal office to explain the roles of the Executive, Legislative and Judicial branches of the Federal government and how they can check and balance each other so we know if we are voting for someone who will follow his or her oath to preserve, protect and defend the Constitution or if we are voting for someone who views the Constitution as little more than a distraction or worse.
With everything there are trade-offs. No matter what the Supreme Court decides, I believe a positive outcome of this episode is that America is getting a much-needed lesson on checks and balances of power and maybe that will encourage voters to carry out more due diligence on their candidates.