Skip to comments.Response To 11th Circuit Obamacare Dissent: The Real Meaning Of Judicial Activism
Posted on 08/23/2011 7:07:30 PM PDT by stevelackner
The 11th Circuit Court of Appeals ruled on August 12, 2011 that "[t]his economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. 'Uniqueness' [of the health care market] is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce." The individual mandate of Obamacare was therefore declared unconstitutional and not within the scope of the enumerated power that is the Commerce Clause (Article I, Section 8, Clause 3). This decision represents nothing more than simple common sense, one example of a court standing at the edge of the Constitutional cliff fulfilling its duty by willing to push back ever so slightly lest the other branches of government let the already critically wounded Constitutionalism of our country be pushed over and land upon the jagged edges of unlimited federal power. If the Supreme Court disagrees, the idea federalism will have taken its last final gasp of air. And when the autopsy is done on the corpse that was our Constitution, it will be all too easy to discover that it was poisoned by the federal judiciary.
Liberal experts and scholars of Supreme Court precedent like Erwin Chemerinsky and others did not even take the Constitutional challenge seriously and initially asserted there were no merits to the arguments against the mandate. Chemerinsky even predicted that all the Courts of Appeals would rule in favor of the government because he saw it as such a closed case. He has already been proven wrong, and every American must hope the Supreme Court takes a page out of the decision of the 11th Circuit and proves them all wrong once again.
The majority decision has been described by the Washington Post's E.J. Dionne Jr. as "rampant conservative judicial activism... It is yet another case of judges, at the behest of conservatives, doing the very thing conservatives claim to abominate: making their own law and ignoring the judgments of branches of government elected democratically by the voters." What the left is doing is co-opting language used to legitimately criticize the federal judiciary and redefining it. This ruling in no way represents "judicial activism" of any sort. It is an absolutely asinine description of "judicial activism" to assume that it merely means judicial overturning of a statute. This completely misunderstands the intended role of the federal judiciary. If a statute is truly unconstitutional, as the Obamacare mandate is for it stands outside the original meaning of the Commerce Clause, then it is fidelity to the Constitution which is our most fundamental law to strike that statute down, not "activism." Judicial activism is the overturning of laws that do not violate the original meaning of the Constitution, and upholding those that do. It is the policy preferences and personal predilections of judges standing over and above our Basic Law. James Madison wrote to Spencer Roane in 1819 that true judicial activism was found in the "the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress." Judicial activism was, according to the "Father of the Constitution" writing in 1821, the practice of the Court "of mingling with their judgments pronounced, comments & reasonings of a scope beyond them; and that there is often an apparent disposition to amplify the authorities of the Union at the expence of those of the States. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered [Constitutional Govt] over a traditional Govt." Departing from this indispensable obligation is the very essence of judicial activism. Failing to impartially man Constitutional boundaries of federal power is at the heart of true judicial activism, not this new absurd contention from liberal writers that it is merely the overturning of a statute even if the original meaning of the Constitution demands it. That is nothing more than an example of a judiciary abrogating its sworn and self-appointed duty of judicial review. When Jame Madison wrote to Thomas Jefferson in 1823 saying "I am not unaware that the Judiciary career has not corresponded with what was anticipated," this did not simplistically and rather ignorantly refer to judges striking down any law voted and signed by the elected branches. It specifically referred to when "the Judges perverted the Bench of Justice into a rostrum for partizan harangues" and when the Supreme Court "by extrajudicial reasonings & dicta, has manifested a propensity to enlarge the general [federal] authority in derogation of the local, and to amplify its own jurisdiction, which has justly incurred the public censure." Judge Stanley Marcus and his fellow corrupters of the Constitution aptly fall within this description.
Judge Stanley Marcus dissented from the 11th Circuit ruling. Judge Marcus falls in line with with the liberal legal non-thinkers assault of "judicial activism" now to be levied against judges that dare apply the Constitution. He declares in dissent that the "approach taken by the majority" is to disregard "the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers." But where does this "admonition" come from? From faulty Supreme Court rulings that failed to previously faithfully apply the Constitution according to its terms and original fixed meaning. This runs counter to what Alexander Hamilton called in Federalist No. 81 "the general theory of a limited constitution" where "the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution." Real judicial restraint and humility only comes from an honest application of the original meaning of the Constitution. Judicial activism can therefore equally be demonstrated by refusing to restrain the federal government when it leaps outside the bounds of Constitution. As James Wilson promised the Pennsylvania Ratifying Convention in 1788, "I say, under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department... [F]or it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges,--when they consider its principles, and find it to be incompatible with the superior power of the Constitution,--it is their duty to pronounce it void" (emphasis in original). The baseless "presumption of Constitutionality" must be abandoned, for it is a presumption that runs counter to the very purpose of the Constitution. "We ought always to presume...the real intention [of the Constitution] which is alone consistent with the Constitution," wrote Thomas Jefferson to Albert Gallatin in 1802. Following the original intention of the Constitution should be the only presumption. Doing so is certainly the farthest thing from judicial activism, for it means only that judges are taking their task of judicial review seriously and performing this duty as intended.
Dione Jr. called Judge Marcus's opinion a "brilliant" and "powerful" dissent. What it actually represents is the most bold and unabashed declaration of "living Constitutionalism" yet seen. It is one of the worst opinions ever written, and analyzing a few key arguments should suffice to prove this. The dissent states that "[i]n the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court." Notice right away that the judge make no appeal to the Constitution itself, only to deviant "doctrines" the judiciary has itself "developed." The judge continues saying, "It has ignored the broad power of Congress, in the words of Chief Justice Marshall [in Gibbons v. Ogden (1824)], 'to prescribe the rule by which commerce is to be governed.'" But even Gibbons v. Ogden clearly declares that there is an "immense mass of legislation which embraces everything within the territory of a State not surrendered to the General [Federal] Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress, and, consequently, they remain subject to State legislation." Chief Justice Marshall himself considered it obvious that "health laws of every description" are not subject to federal legislation under the Commerce Clause. To sanctimoniously cite John Marshall as if his famous Commerce Clause precedent would allow for the federal government to force an individual in his State to purchase a privately sold product such as health insurance is simply incredulous.
The dissent continues stating that the majority "has ignored the undeniable fact that Congress commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Courts expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services" (emphasis added). There is no appeal to the promises made by the ratifiers of the Constitution concerning the enumeration of powers. Instead this judge smugly chides his colleagues for ignoring what are admittedly "expansive readings" invented out of whole cloth by the Supreme Court itself. Marcus admits that it is only "now," to exclusion of this being the case in our past, that these powers have been expansively interpreted, never thinking to return to the original more limited meaning of the Commerce Clause. The judge shamelessly speaks of the "commerce power" having "grown exponentially over the past two centuries," an arrogant and boldfaced admission that the current "interpretation" of that power has only veered farther from the original Constitution over time and that his dissent is in no way rooted in it. One usurpation is no excuse for the next, an initial power-grab does not justify another, just as stealing the first time does not allow for a second larceny. No Constitutionally enumerated power "exponentially grows" with time, the very purpose of the Constitution was to fix the boundaries of federal power. To speak of a power granted to the federal government growing over time at an exponential rate is to abandon what Thomas Jefferson described in 1798 were "the chains of the Constitution" that were intended to shackle government. "Living Constitutionalism" is all that is pompously appealed to. Gone is even lip-service to the Framers of the Constitution! Just appealing to the drafters and ratifiers of Constitutional provisions to seek legitimacy, even if disingenuously, is no longer necessary.
Charles Pinckney told the South Carolina Ratifying Convention in 1788 that "[w]e are to reflect that this Constitution is not framed to answer temporary purposes. We hope it will last for ages--that it will be the perpetual protector of our rights and properties." Of course the grants of power have fixed meanings, for if the "the distribution or modification of the constitutional powers be in any particular wrong," George Washington declared in his Farewell Address in 1796, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation. For though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed." Judge Stanley Marcus has admitted that the judiciary has engaged in change by usurpation for far too long. It is the judiciary which feels it has the right to utilize this customary weapon to kill the Constitution. George Washington made clear that the entire "basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." That includes federal judges. The Constitution cannot be changed by them alone, but only by the people through a Constitutional Amendment. Supreme Court Justice Joseph Story wrote in 1833 in his Commentaries on the Constitution, that the Constitution has "a fixed, uniform, and permanent construction. It should be...not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and forever." We have departed from this so far that a judge will actually self-righteously rebuke fellow jurists for not accepting as gospel the current view that the Constitution's meaning is not fixed but subject to the whims of the federal judiciary. As Story said, "Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people. Judge Marcus, and too many people in positions of influence and power, have already forgotten.
Judicial activism is demonstrated by the fact, in the words of Madison in 1819, that "it was anticipated...by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant" as emerges from the federal judiciary. In fact, Madison maintains, "still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification." Today the judicial construction of the Commerce Clause faces not only continuing as it has for decades to be egregiously "broad & pliant" in a fashion that would have meant the Constitution would have never been ratified. If the Obamacare mandate is to be upheld and the Supreme Court is to issue an opinion that is anything similar to that of Judge Marcus, it would mean the Commerce Clause had been stretched to the breaking point of the entire Constitution.
If this totalitarian exercise in the destruction of the Constitution and freedom is allowed to stand in the Supreme Court the people of this country will have two choices.
To capitulate and become serfs forever, or refuse to obey the illegal mandates of a rogue government.
Obamacare is open treason. That’s why it’se defenders so specifically accuse conservative of exactly what they are doing, or refuse to even entertain any arguments against it - because it’s open treason. It is an outright rejection of the entirety of the Constitution, with the sole purpose of establishing the precedent necessary to enable future rejections of Constitutional limits for any issue, under any circumstances.
Obamacare is “it.” It is the ultimate attack everyone has been waiting for. And it isn’t actually Obamacare - it is Hillarycare, lock stock and barrel. They just slapped his name on it because he’s in the Whitehouse instead of her. Hell, he’s too stupid to even read it. What do you think it would be called if Hillary was in the Whitehouse - and don’t you think she’d claim it was the final victory of what she started in ‘94? Of course she would - and she’d be right That’s what it is.
Madison's statement is ridiculous. It certainly WAS anticipated. But of course those who DID anticipate it were opponents of the Constitution, for that very reason:
They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations...
...This power in the judicial, will enable them to mould the government, into almost any shape they please.
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788.
PS--I believe some "friends of the Constitution" knew full well this would happen--Hamilton, for one.
The real miracle is that for a century afterwards we were (mostly) blessed with individuals in the judiciary who had decency, integrity, and - most of all - restraint; and who did not take full advantage of the TYRANNY that they had granted themselves in Marbury.
Them days is looong gone.
A very thoughtful and well reasoned essay. I have found that taking a position opposite Chemerinsky usually arrives at the correct result.
See http://www.stevelackner.com/2011/08/anti-federalists-were-right-how.html for my discussion of precisely that point about the Anti-Federalists and Supreme Court.
Glad to see someone else is out in the wilderness trying to get the message across. You never hear talk of the anti-feds, because it doesn’t fit nicely into the talk radio rap. It’s always about the Federalist papers, even though most of what the Federalists wrote turned out to be dead wrong. “Few and defined” powers? Bwahahaaaa!
The results are in. The antifeds were right. The federalists were wrong. The flaw is structural, not operational, unless you assume government is made up of good, honest men. Article 3 is an abject failure and a constant threat--nay, usurper of liberty. It needs to be fixed. As far as I know, there aren't any think tanks (Cato, Heritage, et al) even devoting time to the question.
In fact, when the antifederalists first offered up what became the 10th amendment, it included the language "those powers not expressly delegated." It was voted down by the Federalists, because expressly delegated means no implied powers, which means no judicial invention.
That's how we ended up with the toothless, worthless, superfluous and totally meaningless 10th amendment we got instead.
FYI: You cannot purchase health insurance across state lines ...
"Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention [p195] been to extend the power to every description. The enumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself."
Absolutely right. Which is why the individual States must reclaim the right of Nullification, as a necessary check to the General Government and a compliant federal judiciary.
“rampant conservative judicial activism... It is yet another case of judges, at the behest of conservatives, doing the very thing conservatives claim to abominate: making their own law and ignoring the judgments of branches of government elected democratically by the voters.”
The audacity of this quote was, to me, staggering. This person’s lack of knowledge concerning the Constitutional relationship between the Legislative and Judicial branch was as wide and deep as the Pacific Ocean.
And here I thought you had been reformed Huck. From the looks of it however, I see you STILL act like you’ve been bludgeoned to a bloody pulp with an idiot stick. You are either a simpleton or a troll and I can’t make up my mind which it is. Or maybe an admixture of the two. “Fixing” our Constitution in today’s environment is a pipe dream of utopian dreamers that hardly warrants a response but I can’t help myself every time I run across your nonsensical chatter.
There is no right of nullification.
I agree. But it doesn't change the facts.
Of course Wickard v Fillburn changed all that. Raich recently reaffirmed Wickard (with Scalia concurring.)
I was wondering about that - it seems a counterexample to the opening premise of the article.
We live in an imperfect world chock full of imperfect people. We live in a world where the pursuit of excellence is about the best we can hope for, where "good enough" is the most likely and most frequent outcome. You want perfection? Knock yourself out but in the meantime I'll sit on my butt knowing full well my list will contain exactly ZERO items. And I hopefully will have actually accomplished something constructive while you tilt at windmills.
Straw man argument of the lamest kind. You suggest it’s foolish to improve on something because perfection is not an option? Then why have an amendment process? For decoration? Come back when you have an opinion worth reading.
I see comprehension is not a strong suit of yours either. I should have known. Would it help if I drew some pictures or maybe some diagrams for you to look at? In any case, you should get started on your list forthwith. You have a lot of work to do and you’re wasting valuable time.
Draw pictures of what? Straw men?
The problem is not with Marbury, but with the way it in turn has been interpreted. The job of the court is in part to determine what the law is (especially in cases where the meaning is unclear). Marbury is quite right in that. The problem comes when the statement "If the courts do their job, what they say will match what the law says", mutates into "Whatever the courts say is the law."
Further, while it is entirely proper for courts to "legislate from the bench" in cases where the laws are otherwise ambiguous, it is also entirely proper for legislatures to respond to such rulings by writing their own legislation, and such legislation should preempt any rulings that were written in their absence.
Interesting. Prior to Marbury, where can I find this interpretation of the role and powers of the judiciary?
It's been a long time since I read some interesting papers on the subject, but I would suggest that what's important to recognize is that nothing in the Constitution gives judicial rulings any authority above that of the Constitution itself or laws passed thereunder. Not all statutes passed by Congress are legitimate, and if Congress passes an illegitimate statute (e.g. one which would violate the Constitution) such a statute has no legitimate authority whatsoever, and so the Court has the authority and duty to overrule it. That the Court has the authority to overrule illegitimate statutes does not imply that it has the authority to overrule legitimate ones.
As for the legitimate scope of 'judicial legislation', imagine that there is a jellybean-counting contest. Contestants A, B, C, D, and E submit guesses of 1000, 1001, 1002, 1003, and 1004 jellybeans, respectively. According to the rules, a person appointed as the official jellybean judge is supposed to designate as a winner the person who is closest to stating the number of jellybeans in the jar. That person examines the contents of the jar and finds 500 perfect red jellybeans, 501 perfect blue jellybeans, half of a red jellybean, half of a blue jellybean, and nothing else resembling any part of a jellybean.
If nothing in the rules says anything about how half-jellybeans should be counted, the judge would have to invent his own rule. Maybe count only whole jellybeans, maybe count anything that's clearly part of a distinct jellybean (since the two halves are different colors, they are clearly not halves of the same jellybean), or maybe count the two half-jellybeans as one whole jellybean. Absent something in the rules specifying otherwise, the judge would be perfectly within his authority to select any of those counting methods. If, however, the contest sponsors decided to explicitly specify a counting method for succeeding contests, they would be within their authority to do so without regard for the method chosen by the judge, and the judge would be required to abide by their selection in future contests.
Everything you've described ascribes power to judges that they do NOT have.
Short of Constitutional Amendment (which, according to your interpretation, would also be subject to the whims of the judiciary), it grants to judges the final and absolute authority to determine what is legitimate or illegitimate according to their view of the Constitution.
That is NOT their power. It is NOT their job. It is NOT their right.
It is the right, the power, and the job of the people.
Since Marbury, the people have foolishly chosen (through their representatives to Congress) to allow this power to be (unconstitutionally) delegated to appointed (i.e. UNelected), life-term judges. Should the people continue to allow their right to be usurped by the judiciary, there's nothing anyone can do about it. But this stupid choice does not change the fact that -- according to the principles that underlie the Constitution -- determining what is Constitutionally legitimate or illegitimate is the right and the power of the people, and the people alone ... and NOT the Judiciary.
There could have been included in the Constitution additional checks and balances designed to prevent exactly this usurpation of power by the judiciary. In fact, such checks on the power of the judiciary (although not specific language) were suggested ... indeed, demanded. Those suggestions and demands were ignored and we got what we now have -- judicial tyranny.
Nevertheless, to say that this power lies correctly, properly, rightfully, and justly with the judiciary is WRONG .... dead, flat wrong.
Besides which, it avoids my original question.
Perhaps you misunderstood me. If Congress were to pass a statute which would contradict the Constitution, judges would be duty-bound to regard it as void. The statute would not be void because the judges declared it to be so; it would be void because the Supreme Law of the Land declared it to be so. Conversely, if Congress passes a legitimate statute, judges are duty-bound to uphold it, since the Constitution specifies that legitimate statutes are part of the Supreme Law of the Land.
The difficulty comes not from recognizing that judges are duty-bound to regard illegitimate statutes as void and legitimate statutes is valid, but rather from an unwillingness to recognizes that not all judicial decisions are legitimate. It is that unwillingness to question the legitimacy of judicial decisions that has enabled the gross judicial overstepping of authority.
Further, while courts have, and require, legitimate authority to draft and apply interim rules when necessary to resolve ambiguities in existing laws, this does not grant such interim rules any authority beyond what's necessary to resolve ambiguity. Only in cases where ambiguity can be demonstrated without regard to precedent should precedent even be considered. Otherwise, if existing rules would be unambiguous, precedent is either going to be (1) inapplicable to the present situation, because something in the case is different; (2) redundant, since the outcome it would compel would have been reached even in its absence; or (3) illegitimate, because it was decided contrary to what the law requires.
While a federal statute may legitimately restrict a class of actions which would typically affect interstate commerce in various ways without stating a specific nexus (since different actions in the class might affect interstate commerce in different ways), a prosecutor bringing charges under such a statute should be required to convince a jury that allowing the defendant's particular actions would interfere with the government's authority to regulate interstate commerce. Likewise, prosecutors should be required not only to convince a judge that evidence was not gathered in patently-illegitimate fashion, but also convince a jury that things like searches were "reasonable", that bona fide "probable cause" existed, etc. Note that in many cases, such determinations will depend on things like witness credibility, which are clearly matters for jurors rather than judges to determine.
The importance of jurors, however, does not imply that resolutions of ambiguous laws should never fall to judges. Among other things, of neither party in a case requests a jury trial, the matter will quite legitimately fall to a trial judge for determination. At some point, a judge will have to render a decision in a case where the law is truly ambiguous. And in such a case, the judge is the person with the authority to resolve such ambiguity.