Has the Supreme Court ever served as a bulwark of constitutional liberty 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 Supreme Court would 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 more remain — but I didn’t think the Court was going to save us from this monstrous pseudo-law.
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 it all only on the political battlefield. 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 now 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.” (This post is adapted from my June 2011 post “How to avoid Obamacare (not).”)