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Following the Constitution Isn't "Judicial Activism"

By David Harsanyi

For discussion's sake, let's just concede that every four years or so the American public is fooled into voting for a demagogue who's mastered a pleasant-sounding, market-tested populism. Let's then imagine -- this is for discussion only -- that this person's resulting agenda, cheery but mildly authoritarian, passes with public support.

Does the federal court system exist to rubber stamp legislation? Should they check in and see if it's cool with the public? Or do we have courts to decide the constitutionality of laws? Do we insulate judges from democracy for a reason? Do we have a Constitution to keep a check on government or to bend to the constant predilections of the electorate?

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The White House's position is clear. When U.S. District Judge Roger Vinson ruled this week that Obamacare was unconstitutional -- due to its individual mandate -- the White House's first reaction was to call the ruling "out of the mainstream," as if it were remotely true or that it even mattered.

The decision, you may not be surprised to hear, is also a case of "judicial activism" and an "overreach."

Co-opting conservative terms like "judicial activism" is a cute way of trying to turn the tables on those who have some reverence for the original intent of the Founders.

The true activist invents new ways to expand power and set precedents allowing his or her ideological views to be embedded in the "Constitution" forever. An activist searches for ways to rationalize intrusions, not to limit them -- unless the breach involves terrorism suspects and the guy holed up in the White House is a Bush.

Vinson may be overruled, but his decision is cogent and persuasive and doesn't seek out excuses for abuse. His ruling asks for the kind of government restraint that judges rarely have the appetite to call for, even though, need I remind you, "judicial activism" in the defense of liberty is no vice.

Now, it also takes impressive chutzpah for the White House to call Vinson's decision "overreaching," when we're in the middle of discussing a piece of legislation that, for the first time in history, coerces American citizens to buy a product in a private market by defining economic inactivity as activity.

"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain" for it would be "difficult to perceive any limitation on federal power" ... and we would have a Constitution in name only," wrote Vinson. But alas, we're almost home -- and that's the goal.

Once our interconnected economic existence is grounds enough for impelling us to be good citizens, we're gonna fix the despicable unfairness of this cruel, selfish system, but good.

Pathos, after all, is the most effective tool for passing liberal social policy, so it's not surprising that the president is a fan of empathy-based jurisprudence. This portion of the discussion shouldn't focus on supposed benefits or failures of reform but how we get there. Yet, today's liberals can't stop making a consequentialist argument (I heard that once on PBS) that refuses to separate what's "right" and how we get to what's right.

That mindset is why Nancy Pelosi and other legislators instinctively laughed off any constitutional question about the legislation. It rarely matters. Then again, with 26 state attorneys general and two federal judges weighing in, maybe it does now.

Historically speaking, though, the chances of stopping the individual mandate are not good -- as courts have generally deferred to wishes of the legislative branch. Nevertheless, this week was a pretty good one for those who do care about the Constitution's fading relevance.

Reach columnist David Harsanyi at

Copyright 2011, Creators Syndicate Inc.

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