The Constitutional Law Scholar Who Hates the Constitution

I won’t delve too deeply into the Obamacare SCOTUS proceedings. There’s a dearth of compelling content for you to find elsewhere on this great series of tubes. What is jumping out to me is the evolving narrative from both President Obama and others on the left that will attempt to delegitimize the Supreme Court of the United States in advance of a possible defeat. If the current arc continues (the President actually sneered at the SCOTUS as “an unelected group of people”), we could have the most brazen attack on the judicial branch of our government since this:

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This should surprise no one, really. Obama, like FDR, sees the Constitution as an obstacle to be overcome or worked around, not something that he swore on oath to preserve, protect and defend (see: assassinating citizens based on secret justification). FDR, at least, was an unabashed politico; Obama used his Constitutional street cred to sell us the bill of goods that he was ushering in a new epoch of post-partisan harmony. You should really read this whole piece at the Volokh Conspiracy, titled President Obama versus the Constitution, but here are some highlights (bold mine):

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

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.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

 

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

 

How prophetic is Hamilton in Federalist 78? I could sit for hours and not concoct a more accurate tagline for the current Democratic Party (and the Republicans, too, when they’re in power) than “the representatives of the people are superior to the people themselves.” Here’s hoping the SCOTUS stands up to this latest bully.

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