Will Engaged Justices Prevail?

By Will, George F | Tribune-Review/Pittsburgh Tribune-Review, December 5, 2010 | Go to article overview

Will Engaged Justices Prevail?


Will, George F, Tribune-Review/Pittsburgh Tribune-Review


The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.

-- Marbury v. Madison (1803)

WASHINGTON

Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators?

A case destined for the Supreme Court concerns the health-care law. The Constitution establishes a government of limited and enumerated powers. Which one empowers Congress to force individuals to purchase health insurance and to punish those who do not?

Supporters of the mandate answer: the power to regulate interstate commerce.

Opponents reply: Unless that power is infinitely elastic, it does not authorize Congress to forbid the inactivity of not purchasing a product from a private company. If the power is infinitely elastic, Congress can do anything -- eat your broccoli, or else -- and America no longer has a limited government.

Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism.

The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution's prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature's judgment that its police power -- its general authority to protect the public welfare -- trumped the constitutional ban on retroactive legislation?

The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate.

Has the U.S. Supreme Court construed the Commerce Clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants?

Willett's words, applied to the ObamaCare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?

Willett says: In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands. …

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