American judges must keep government in check
The Supreme Court’s upholding of the Affordable Care Act cemented the largest expansion of domestic social policy in a generation. A graver significance of the decision, however, rests in the reasoning of majority opinion. Going into oral arguments, claims that the individual mandate to purchase health insurance fell under Congress’ taxing power were either disregarded or viewed as highly dubious. Yet the tax argument came to be the improbable tool of the healthcare law’s redemption in the hands of its even more unlikely savior: Chief Justice John Roberts.
Transforming what had been a minor piece of the government’s legal case into the lynchpin of the law’s constitutionality exposed the lengths to which Roberts was willing to travel in order to avoid striking down an act of Congress. Unfortunately, the Chief Justice’s intellectual acrobatics exemplify a concerning judicial trend: reflexively approving laws simply because they are passed by legislative bodies, without properly weighing each act’s constitutional merits. Resurrecting proper judicial oversight of the political branches requires an investigation into the decay of proper constitutional enforcement.
Chief Justice Roberts’ 2005 confirmation hearing before the Senate Judiciary Committee reveals evidence of a troubling insistence among committee members for judicial restraint that verged on abdication. Of the 19 instances when the proper role of the judiciary arose in the hearings, a bipartisan plurality of senators dedicated 18 of those questions to trumpeting their desire for a more deferential judicial branch. A desire to avoid charges of activism has rendered many of the Constitution’s protections of liberty impotent by compromising judges��� willingness to enforce them.
The decline of individual freedom began when the Supreme Court all but ceased to enforce the doctrine of enumerated powers, which led to the Court’s affirmation of the New Deal. Now, questioning this time of expanding entitlements often induces apoplexy in those who look back at that period with nostalgia. Nonetheless, one may criticize a lapse in constitutional discipline in the Supreme Court without also demanding the rollback of Social Security.
In the vacuum created by the Supreme Court’s failure to enforce constitutional limits on government power, libertarian and conservative public interest organizations have emerged, including the highly regarded Institute for Justice. For those alarmed by the judicial abdication exemplified by the Supreme Court’s ruling in the healthcare case, the fix for out-of-control government is clear: a healthy dose of judicial engagement. As the Institute’s leader Chip Mellor recently explained, “The structure of the Constitution rejects blind deference to the other branches. The courts’ job is to check constitutionally forbidden political impulses, not ratify them under the banner of majoritarian democracy.”
One must clearly distinguish engagement from activism. Judges restricting government to its enumerated powers have been mischaracterized as unelected officials attempting to set policy by thwarting the exercise of congressional power. Even still, there are those who would measure the impropriety of judges solely by the number of laws they strike down, regardless of whether the acts are unconstitutional, which is the only correct method of evaluating judicial activity. Therefore, stopping unfettered federal power should be revered in judges more than passivity. This is the judicial philosophy of the Framers, but it has been largely abandoned by those who call for—and practice—blind deference to legislatures.
Beneath the contrasting judicial philosophies is a common, well-intentioned sentiment: a desire to preserve the balance of power set out at the nation’s founding. From this base, one school of thought holds that judges ought to faithfully enforce provisions of the Constitution as written and intended, while another advocates acquiescence to the legislative and executive branches. This gap can and should be bridged.
Most everyone agrees that judges ought to curb federal power to some degree. Setting aside inevitable disputes over the precise constitutional bounds of those powers, it should be clear that the mere fact that a statute is enacted by the legislative and executive branches is not in itself a source of legitimacy. If we are to reclaim our lost liberties, we must revitalize the judiciary.