Judicial Review

There is an argument going around, mainly on the Left, that the Supreme Court cannot overturn the PPACA (aka Obamacare) because it is just too major and significant.  It's sort of OK to overturn minor legislation at the margins, but if Congress does something really big, it deserved the Court's respect and acquiescence.

But it strikes me that the larger and more comprehensive a piece of legislation is, the more likely it is to run afoul of Constitutional restrictions.  And this is the case no matter what theory one holds about the Constitution.

I am not a Constitutional scholar nor a lawyer, but I would describe two schools of thought on the Constitution.  The first is that the Constitution gives the Federal government certain enumerated, defined powers beyond which it may not stray.  The second is that the Constitution gives citizens a number of enumerated, defined rights (e.g.  First Amendment freedom of speech) such that the Federal government can do most anything it wants as long as it does not trample on these defined rights.   (I would argue that the first interpretation was the clear meaning of its authors, and the second interpretation is probably the majority view today of average Americans today).

But under either interpretation, larger, more sweeping legislation is more rather than less likely to cross a boundary that circumscribes Federal power.  Whether such a boundary has been crossed by this legislation is another matter, but the argument that large legislation per se should be exempt from the possibility of being overturned on Constitutional grounds does not hold water.


  1. TJIC:

    > But it strikes me that the larger and more comprehensive a piece of legislation is, the more likely it is to run afoul of Constitutional restrictions.

    Run afoul of WHAT?

    I'm sorry - if any leftist was reading this post, that sentence right there just broke their brain.

    Please rephrase in terms of "advancing the centuries long march of the progressive agenda" or "white racism", and maybe they'll be able to get it.

    ...or maybe not.

  2. TJIC:

    > I would describe two schools of thought on the Constitution.

    There's a third one, the legal realist school, which is basically that of an English graduate program: there's this document, and we don't have to LISTEN to it, but we do have to STUDY it and then frame our essays on whatever-the-hell we care to talk about in TERMS of the document.

    So, in the same way that A Christmas Carol can be a launch pad to discuss either (a) Christian morals, (b) capitalism, or (c) racism and ecological destruction in Central American in the 1990s, the Constitution can be seen as

    (a) a document binding government, (b) a document granting rights to people, (c) a historical document with some inspiring messages that might - or might not - somehow have penumbras that impinge upon 21st century health care debates, and which provides textual fodder. For example, since it begins "We the People of the United States, in Order to form a more perfect Union, establish Justice", it's clear that there can be no justices without equal access to healthcare.

    I strongly suggest that most leftists treat the Constitution the way that Christian-tolerant agnostics treat the bible: a sometimes inspiring piece of literature that might have some cultural relevance but has no binding relevance.

    The difference is that agnostics and atheists, to quote Thomas Jefferson, neither pick my pocket nor break my arm...whereas leftists do both.

  3. me:

    Well, my (leftist, just to put a bit of a damper on all that tribalism going around ;)) opinion is that it should be overturned in its entirety *because* it is major, significant and overly complex. Whenever congress makes a law that has all sorts of wide impact and is so poorly written that they "have to pass it to see what's in it" they deserve nothing else. Well, maybe electroshock-therapy, but that's a different issue.

  4. Noah:

    You are correct that you aren't a Constitutional scholar. The First Amendant does not grant any rights to individuals. It also is an enumerated power limiting Congress.

  5. Rick Caird:

    It strikes me that those arguing most vociferously against the ability of the Supreme Court to overturn ObamaCare are the same people who congratulated the Supreme Court for their ruling on military tribunals and Hamdi. I am certain it is not an argument being being made from personal integrity.

  6. Matt:

    The law is "Too big to fail". NOT ;-P

  7. KTWO:

    The "too big" or "too important" doctrines would allow Congress to abolish the Constitution itself. After all, what would be bigger or more important legislation than that?

  8. Patrick:

    The bigger they are ..... the harder they fall! Bad legislation is like a bad disease, the sooner it is eradicated, the cheaper and less pain is felt by the patient.

  9. Hunt Johnsen:

    "It's a trap!"
    I think the Constitution has already been pretty much rendered ineffective. We will need to fall back on The Declaration of Independence before long.

  10. Hunt Johnsen:

    Whoops - it's too late according to Anne Barnhardt- http://barnhardt.biz/

  11. SkepticalCynical:

    Such arguments are entirely instrumental. The people making them generally do not believe in either of your notions of constitutional limits - most progressives seem to believe that the state does and should have any powers required to achieve outcomes deemed "good". On the factual point, the progressives are certainly correct.

    For about 120 years, the Constitution was sort of a Schelling Point that coordinated broadly-held beliefs about limited government. Today, the ruling class does not share those beliefs, and therefore the Constitution does not meaningfully limit their actions. If PPACA is declared unconstitutional, it will not halt the expansion of state power, nor even much slow down the state's takeover of healthcare. It will just signify that the balance of power between factions of the elite has changed somewhat.

  12. morganovich:

    why are those 2 schools in any way mutually exclusive?

    my view is that the federal government is limited to enumerated powers but that even in exercising them, they may not infringe upon our rights. (possibly with the intended and deliberate exception of eminent domain)

    i view it as a double layer of safety for citizens, not an either or choice.

  13. chuck martel:

    The federal government can do whatever it wishes because it has the most and biggest firearms. The petty arguments between the parties and the branches are a game. Compare it to baseball. When the Yankees beat the Red Sox, the Bostonians don't disappear from the planet. They're still in the league, they still get to play. Next time maybe they'll win. It's the same with the government. The parties and their phony ideologies are meaningless, the point is to keep that big state engine running by making us buy the gas and oil for it. That's all that counts.

  14. Ariel:


    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    That's not an enumeration of powers (what Congress can do) but a description, an injunction, of what Congress may not do, based on the concept of inherent rights that Government has no power over. So you are 180 degrees out regarding the First Amendment, and likely all else. The First Amendment enjoins Congress from prohibiting or abridging religion, speech, or the use of technology for disseminating speech (the Press is a machine not a degree in journalism), as well the rest. This was really argued well between the Federalist and the Anti-Federalists, leaving no doubt that these are individual rights. Pray tell, how do you grant rights to groups without any one individual in that group not having the rights granted?

  15. Ariel:

    Secondly, no offense, but, Noah, your argument didn't meet my elementary school teaching on the founding of this country and the concepts embraced. We tore this apart and put it back together when I was a Junior in HS too. You can argue against natural rights by way of a Creator or inherent rights by way of sentience (or you can amorally, even immorally, argue that the gun determines rights), but ultimately no human civilization is worth having without natural or inherent rights. And those rights are individual or we are all cattle where some cows determine which other cows should be sacrificed. Orwell knew something.

  16. tomw:

    The Constitution grants me nothing. It acknowledges GOD GIVEN RIGHTS. The US Government grants me nothing, it is limited by the Constitution.
    Those who disagree, and think powers inherent in the Constitution are unlimited and pervasive implicitly ignore the words embedded therein:
    Amendment 10
    The powers not delegated to the United States by the Constitution, nor
    prohibited by it to the States, are reserved to the States respectively, or to
    the people.

    Where oh where is the power to require my individual purchase of a good or service at the will of the government? Who are they to make such an order? They are MY employees, who serve at my will, along with that of all other citizens. They were elected to GOVERN, not to RULE. They are not my superiors nor my overseers with a set of orders for me to follow.
    My God Given Right is not theirs to mis-appropriate.
    Only while serving on active duty in the military do my rights get impinged.

  17. caseyboy:

    Hey the Founders tried - “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
    ― James Madison, The Federalist Papers

    "auxiliary precautions" you ask? That would be the 2nd Amendment.

  18. caseyboy:

    If SCOTUS finds the individual mandate to be constitutional then there is nothing that government cannot do in the name of regulating commerce. I think the mandate will be struck down, but severed so that the rest of the law stays in place. That means Congress will have to repeal it or fix the big gaping whole.

    As for the will of the people argument to let it stand, the congress that passed it so we could see what was in it was turned over pretty extensively with many of the supporters turned out of office. Democrat Senators were lucky only a portion of the senate seats were up for reelection. I pray it is overturned rather then having to repeal it.

  19. DensityDuck:

    Matt, that was my first thought, too. "Are they actually trying to make the argument that the PPACA is too big to fail?"