The Promised Land of Restored Constitutionalism

As almost anyone who pays any attention to politics probably knows by now, the lawsuit against Obamacare by twenty-six states received a favorable ruling yesterday. Federal District Court Judge Roger Vinson concluded that the law was a violation of the Constitution since it mandated that people buy health insurance.

Judge Vinson


Vinson went further than the Virginia judge who ruled against the law a number of weeks ago. Instead of declaring that only one part of the law was unconstitutional, he noted that you cannot sever that one part from the whole: since that one part was so foundational to the statute, the entire law is unconstitutional. That makes eminent sense.

Already the law’s backers are challenging the ruling. The Obama administration calls the decision “judicial activism.” How ironic. Obama stretches constitutional provisions beyond recognition, while Judge Vinson calls us back to original intent, and Vinson is the activist? There’s an academic term for that: baloney.

While this is an important milestone in the drive to overturn Obamacare, it isn’t the last word. It will be appealed through the system until it arrives on the steps of the Supreme Court, and there’s still no telling how the Court will rule.

Meanwhile, Sen. Jim DeMint has prepared an Obamacare repeal bill for the Senate, following on the House’s vote for repeal earlier. At last report, DeMint had all forty-seven Republican senators on board. That’s almost unheard of, considering who some of those senators are. All it will take is for four Democrats to come over to the Republicans’ side and this could be sent to the president’s desk. Yes, it will be vetoed if that occurs, but the sense of the entire Congress will be clear and Obama will be the lone obstruction. In a nation where more than 50% of the electorate (particularly among those who are most likely to vote) wants it repealed, he will suffer politically for his stubborn resistance to constitutional limitations.

Most of what Obama has proposed is unconstitutional; beyond that, none of it has ever worked for anyone else, so why believe it will work here?

There’s a lot that needs to be reversed after the past two years. The Promised Land of restored constitutionalism is not yet in view, but one gets a feeling we’re at least marching in the right direction.

What Real Hearings Would Be Like

I don’t watch Supreme Court confirmation hearings. I have much better things to do than see a preordained script followed. What’s taking place in the Kagan hearings right now is nothing but a show for the cameras. You won’t hear the nominee say anything of substance.

Then again, that’s really not necessary in her case. We may play a game about not knowing what she believes, but everyone really does know already. The key is for her not to tell.

The really sad part is that even if she were to tell all, she would still be confirmed. If she said the Constitution should be trampled and torn into shreds, she would be confirmed. It’s simply a matter of math—too many Democrats who will vote for her no matter what.

Hearings should get to the bottom of a nominee’s judicial philosophy. The nominee should be required to respond to specific questions about how he or she would determine constitutionality in various cases. Nominees should say why they agree or disagree with decisions the Court has made in the past. The funny thing is that Elena Kagan once wrote that those were what the hearings should be like. Apparently, she doesn’t agree with herself anymore.

There should be one overriding qualification: does the nominee believe that the Constitution, as originally understood, is the law of the land. If someone should argue that no one can know how it was originally understood, that’s an invalid argument. We have the Federalist Papers, we have the notes from the Constitutional Convention, and we have other commentaries from that period, particularly the one written by Supreme Court Justice Joseph Story. Original intent is not a mystery.

Of course, we shouldn’t even be so concerned about who sits on the Supreme Court. If it were to stay within constitutional limitations, it wouldn’t be deciding the future of the country on a series of 5-4 votes anyway. Alexander Hamilton declared that the federal courts would be the weakest of the three branches. The ascendancy of the philosophy of the “living Constitution” changed that—and not for the better.

Federalism. Does anyone remember that? It’s when we have three co-equal and balancing branches of the government, each keeping a check on the others. It would be nice to get back to that basic understanding once again.