Monday, 06 Dec 2010 09:44 AM
By George Will
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 healthcare
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."
Thus a legislature's judgment that a measure is desirable
does not relieve a court of the duty to judge whether it is
constitutional. "The political branches decide if laws
pass; courts decide if laws pass muster," wrote Willett. Judges
must recognize that legislators' policymaking primacy "is not
constitutional carte blanche to regulate all spheres of everyday
life; pre-eminence does not equal omnipotence."
What Willett says of the states' police power is applicable to
Congress' power under the Commerce Clause: "When police power
becomes a convenient talisman waved to short-circuit our
constitutional design, deference devolves into dereliction."
And: "If legislators come to believe that police power is an
ever-present constitutional trump card they can play whenever it
suits them, overreaching is inexorable."
The judiciary's role as referee of constitutional disputes is,
Willett says, "confined yet consequential." But, "If judicial
review means anything, it is that judicial restraint does not
allow everything." And there can come a "constitutional tipping
point" where, by excessive deference to a legislature in the
face of a constitutional limitation, "adjudication more
resembles abdication." Then a state's police power (or Congress'
power under the Commerce Clause) can "extinguish constitutional
liberties with nonchalance."
Like the U.S. Constitution, the Texas Constitution, Willett
notes, is "irrefutably framed in proscription." It "declares an
emphatic 'no' to myriad government undertakings," no matter how
much a majority might desire them. So does the U.S.
Constitution, as in the first words of the Bill of Rights:
"Congress shall make no law . . . "
Judicial review, he writes, sometimes means preventing a
majority today from overturning yesterday's supermajority — "the
one that ratified our solemn Constitution."
Hence the idea that federal judges are accountable to no
current constituency. When construing the Constitution,
however, they are duty-bound to be faithful to the constituency
of those who framed and ratified it.
"There is," Willett explains, "a profound difference between an
activist judge and an engaged judge." The former creates rights
not specified or implied by the Constitution. The latter defends
rights the Framers actually placed there, and prevents the
elected branches from usurping the judiciary's duty to declare
what the Constitution means. Let us hope the Supreme Court
justices are engaged when considering the insurance
mandate.
George Will's e-mail address is georgewill@washpost.com.
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