The courts will not save us

George Will seems to me the preeminent political columnist of our era, with the possible exception of Charles Krauthammer. Will and Krauthammer are in a league of their own. Both are conservatives, of course, and you have to wonder who the liberals can put up against them. Tom Friedman? Maureen Dowd? Paul Krugman? E.J. Dionne? I don’t know.

I come to question Will, however, not to praise him. He has recently devoted two columns to pending lawsuits challenging the legality of Obamacare: “Four words in the ACA could spell its doom” (January 29) and the dramatically headlined “Obamacare’s doom” (May 2).

These are interesting columns and they may even be correct in their assessment of the merits of the lawsuits against Obamacare. Please check them out.

Yet they seem almost willfully naive. They suggest that the courts may yet save us from the galactic evil of Obamacare based on the merits of the arguments. Good grief, man, do you recall NFIB v. Sebelius (2012)? The merits have nothing to do with it.

In the immediate aftermath of the NFIB case, Will declared that conservatives had “won a substantial victory[.]” Yes, to resort to a cliché Will would never use: ’twas a famous victory.

Has the Supreme Court ever served as a bulwark of the Constitution or legal nicety when the chips were down? Contrary to popular belief, and the Supreme Court’s own conception of itself, I think the answer is largely negative.

There is a multitude of examples that supports the negative answer. Think of the Court’s First Amendment decision extending First Amendment protection to flag burning while (mostly) tying itself in knots on campaign finance laws limiting political speech at the core of the idea of free speech. Or, to take a classic example, think of the Japanese internment case. All was not lost. Mr. Korematsu’s conviction for evading internment was set aside in 1983.

To take a somewhat more obscure example, think of the Minnesota Mortgage Moratorium case. When the time came to protect creditors against states impairing the right of contract, the Supreme Court abandoned the constitutional protection on the theory that an emergency supported its suspension.

The idea that the courts will save us from Obamacare is more fitting for Greek drama, with its device of the deus ex machina, than for modern constitutional law. The big legal fight over Obamacare was a good one, one worth having — and, as Will shows, more remain — but I didn’t think the Court was going to save us from this monstrous pseudo-law then and it surely won’t now.

Nevertheless, the litigation over Obamacare provides a good education in the idea of limited constitutional government and the imminent danger of its passing. It also demonstrates the jeopardy in which Obamacare has placed it. To borrow an expression from another of the Supreme Court’s First Amendment mistakes, Obamacare poses a clear and present danger to limited constitutional government.

Now the fight against Obamacare will be won, if at all, only on the political battlefield, or so it seems to me. The Supreme Court has relegated us to the remedy of self-help. The time, coincidentally, is now.

Against the arguments advanced by Obama and the doctrines adopted in one form or another by the Supreme Court, we have continually to pose Lincoln’s question: “Now, I ask you in all soberness if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this government into a government of some other form.”

NOTES: This post is adapted from my June 2011 post “How to avoid Obamacare (not).” And Will has in fact resorted to the same cliché I do, as in this 2010 column, as well as this 2010 column on Obamacare, which actually quotes Southey’s poem at the top.

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