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Think twice about judicial activism

When the U. S. Constitution was first written, the idea of three separate branches of government, each having a “check” on the power of another branch and their own power “balanced” by another, was revolutionary.

And, for more than two hundred years, it has worked well as a means to effectively distribute power throughout the government. One may say that this elegant system is a source of American pride, a defining feature of our political identity.

Therefore, political leanings aside, President Barack Obama’s continued intimidation of the justices of the Supreme Court is a matter that should give every American pause.

I am not certain if Obama’s behavior is a result of disrespect for or ignorance of the Constitution (a document which he swore under oath to preserve, protect and defend), but either scenario does not look good for the president.

The intimidation in question occurred during the recent Supreme Court hearings on the constitutionality of the Affordable Healthcare Act (commonly referred to as “Obamacare”), during which President Obama stated that for the Court to overturn the law would be “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress.” There are, of course, several things wrong with this statement.

The first and most obvious is that Obamacare was not passed by a “strong majority,” but was rather a close vote of 219 to 212, with all Republicans and even 34 Democrats opposing the law.

The second problem is Obama’s remark that such an overturning of legislation would be “unprecedented,” which it would not be. A principal responsibility of the Supreme Court has been to overturn unconstitutional legislation since 1803, as established by Marbury v. Madison, in which Chief Justice John Marshall’s court declared a portion of the Judiciary Act of 1789 to be unconstitutional and therefore invalid. In his opinion, Marshall wrote, “It is emphatically the province and duty of the Judicial Department to say what the law is.” It is quite shocking, then, that former law professor Barack Obama (who specialized in constitutional law, no less, at the University of Chicago) would make the statements he did.

While these inconsistencies may be, at least, surprising, it is the underlying message that should be inferred from Obama’s remarks that are truly alarming.

Is he trying to somehow undermine the constitutionally granted power of the Supreme Court? Does he believe that the justices should not interfere with the dealings of Congress?

Or is his pride in the legislation that he had a pivotal role in influencing simply clouding his judgment? If the answer is yes to any of the above, then that is just simply not what our country is about.

Many on the left have made the somewhat less ignorant claim that the overturning of Obamacare would be judicial activism. But this claim is also unsound. Judicial activism is something quite different.

To use an equally controversial example, let us examine the case of Roe v. Wade, which established a woman’s constitutional right to an abortion. Again, one’s moral, spiritual or social views of abortion aside, Roe v. Wade made no sense from a legal standpoint. There is nothing whatsoever in the Constitution which could possibly be construed as granting a right to abortions for women.

The Constitution does, however, affirm that any power not granted to the federal government is reserved as a power for the state governments. Regardless of which side the abortion debate one falls on, anyone with a cursory understanding of the Constitution can agree that, since the issue of reproductive rights is not attributed to the federal government, it must be left up to the decision of the individual states. This is not what happened, and the Supreme Court’s ruling effectively legalized abortion.  This is judicial activism — the Supreme Court involving itself in issues over which they have no authority, and doing so with a clear partisan motivation.

Reviewing legislation in terms of its constitutionality is not judicial activism; in fact it is exactly what the Supreme Court is supposed to be doing. I hate to break that sad news to President Obama, but I also must demand from my president that he fulfill the responsibilities of his office. And that he would, please, read the Constitution.

 

Vinnie Schneider is a junior in the College of Arts and Sciences.

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