Shortly after President Barack Obama first sensed that the Patient Protection and Affordable Care Act — commonly known as "ObamaCare" — might be overturned by the Supreme Court, he went on the offensive, saying, "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."
He added, "I'm confident that this will be upheld because it should be upheld."
It is an old joke that when we talk about "judicial activism," we're really just referring to the fact that judges have done something we 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 House Speaker Nancy Pelosi was asked by a reporter in 2009 which part of the Constitution gave the federal government the right to regulate healthcare, 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. However, now the Democrats are discovering that the case is not closed, and in their frustration, they're blaming activist judges. The American Spectator's James Antle outlined the absurdity of this assertion, writing, "Nowhere in the confident declarations of the healthcare 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, judicial activism allowed the Patriot Act to stand as the law of the land, even though warrantless wiretaps are a clear violation of the Fourth Amendment. Despite this, federal courts have determined that the Patriot Act is constitutional. Liberals have strongly disagreed, and they are right.
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 have more power in the form of the Patriot Act. Democrats argue that our healthcare situation is so dire that we must have more government power in the form of ObamaCare. Both sides have even argued in various ways that the Constitution is too old, archaic, and irrelevant to address these pressing modern dilemmas.
But the Founders' intent was to erect a bulwark against the inevitable excuses that governments, anywhere, at any time in history, have always used to expand their power. If the Patriot Act is "constitutional" simply because it is "necessary," then ObamaCare is constitutional because its proponents consider it necessary. Whether the Constitution actually allows either is secondary, and constitutionality becomes only a matter of what Republicans and Democrats want, not what out nation's founding charter allows. Constitutionality simply becomes a matter of perspective.
Some might say I'm arguing that what is constitutional depends solely on my own personal perspective. Perhaps. But my perspective is wedded to the hard language of the Constitution in the strictest sense. I do not constantly expand the meaning of the commerce clause, "the general welfare," or anything else to include legislation I simply think is a good idea.
True judicial activism would be to allow ObamaCare to stand, unless anyone can find where in the Constitution the federal government is given the authority to force citizens to purchase healthcare. Obama's legal team has had a hard time trying to find this authority because it can't be found. For once, the letter of the law might be obeyed and the Constitution might stand. Now let's apply this to every piece of big government legislation that both Democrats and Republicans have thought were "good ideas" over the course of the last century.
Jack Hunter assisted Sen. Jim DeMint with his latest book, Now or Never: Saving America From Economic Collapse. He is also the official campaign blogger for GOP presidential candidate Ron Paul, and he co-wrote Rand Paul's The Tea Party Goes to Washington. You can hear Southern Avenger commentaries on The Morning Buzz on 1250 WTMA.