Sensing that there’s a good chance the Patient Protection and Affordable Care Act — commonly known as “Obamacare” — will be overturned by the Supreme Court, President Obama said recently:
“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 …”
Obama added: “I’m confident that this will be upheld because it should be upheld.”
It is an old joke that “judicial activism” means judges doing something you don’t like. This is largely true. But it is also true that “constitutionality” is largely determined by whether or not government is doing something you do like. For example, when then-Speaker Nancy Pelosi was asked by a reporter in 2009 which part of the Constitution gave the federal government the right to regulate health care, she replied “Are you serious?” For Pelosi, Obamacare was constitutional simply because she thought it was a good idea. Any questions to the contrary were automatically absurd in her mind. When the president says of Obamacare, “I’m confident that this will be upheld because it should be upheld,” he is basically saying the same thing — that constitutionality is determined by desirability. Democrats want Obamacare, so therefore it is constitutional. Case closed. Now that Democrats have realized that the case is not closed, they’re lashing out at conservatives and “activist judges” in frustration. The American Spectator’s James Antle explained the absurdity of all this in a recent column:
“What is at stake here isn’t the Tea Party’s Constitution. It is the Constitution written by the Founding Fathers and ratified by the American people. It is the idea that the federal government derives its power from the consent of the governed, consent given not merely every two to six years at the ballot box but when a large majority of the states and the people expressly delegate power to the central government.
“Nowhere in the confident declarations of the health care law’s constitutionality do we see any evidence that the people who wrote or ratified the Constitution intended to give the federal government these powers.”
Such constitutional dishonesty is by no means unique to the left. For example, it is judicial activism to allow legislation like the Patriot Act to stand as the law of the land — the warrantless wiretaps alone are a clear violation of the Fourth Amendment — and yet federal courts have determined the Patriot Act to be constitutional. Liberals have strongly disagreed. Those liberals are right. Are they right simply because they don’t like the Patriot Act? No, they are right because the Fourth Amendment exists to prevent the government from infringing on citizens’ civil liberties through legislation like the Patriot Act.
Still, many Republicans think the Patriot Act is a “good idea” and therefore it becomes “constitutional” in the same way Obamacare is constitutional to Obama and Pelosi. Republicans argue that we live in such dangerous times that we must allow the government to exercise new national security powers through legislation like the Patriot Act. Democrats argue that our health care situation is so dire that we must increase the government’s power to regulate the health care system through legislation like Obamacare. Both sides have argued in various ways that the Constitution is too old, archaic and irrelevant to address these pressing modern dilemmas.
But the Founders’ intent and their Constitution’s purpose was to erect a bulwark against the inevitable excuses that governments throughout history have used to expand their powers. If the Patriot Act is “constitutional” because it is “necessary,” then Obamacare could be considered constitutional because its proponents consider it necessary. Whether the Constitution actually allows either becomes secondary, and constitutionality becomes a matter of what Republicans and Democrats want — not what our nation’s founding charter allows. Constitutionality simply becomes a matter of perspective.