Unexamined Premises

Fundamental Transformation

Let’s cut to the chase regarding yesterday’s stunning Supreme Court decision about ObamaCare: conservatives have no one to blame but themselves for this — and, in fact, looking back at the SB 1070 ruling, should have seen it coming. Everyone got a little too comfortable with the notion that John Roberts would be a reliably conservative — i.e. political — vote. And now look.


But the real lesson is this: it’s not the Supreme Court’s job to save the country from the folly of its legislators. To quote the chief justice:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

That’s the part he got right. And then, as if to emphasize the point, he went and upheld a law that effectively destroys the notion of limited government and personal sovereignty, when he could have struck it down. Welcome to the emanations of the penumbras of  “fundamental transformation.”

The Arizona case had already showed the Court’s willingness to split the baby,  without regard to the larger political issue. For all the Left’s shouting about the politicized nature of the court, Roberts pulled that rug out from under them with his strangely muddled exercise in legal sophistry — an opinion that saved the Democrats’ bacon by deciding that the individual mandate was not a penalty (even though that’s what the administration argued)  but a tax, and while Congress couldn’t use the Commerce clause as a cudgel to beat the public into submission, the General Welfare clause would serve just as well. In other words, even though the effect of this one man’s thinking was political, it was arrived at by lawyerly means.


And that’s just the problem. We expect too much of the Court, and not enough of ourselves. Maybe the Court does, too. After all, the entire judicial branch is practically a constitutional afterthought, dispensed with in three brief sections. Here’s section one:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

That’s pretty much it; the other two sections have to do with jurisdiction and treason. But since the Earl Warren era, the Supreme Court has come to be regarded by both sides not as the court of  last resort, but (thanks to Marbury v. Madison) the legislature of last resort. The Left learned early that it could achieve via the third branch of government (the “least dangerous,” in Hamilton’s words) what it could not win at the ballot box or via the legislative process. The Right came to it more slowly, but in the end adopted the Left’s argument — and that is why many conservatives are so bitterly disappointed today. They wanted the Court to save them from themselves.

Not gonna happen. Roberts again:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.


So it’s time to man up and realize we’re in the fight of our lives — and one with no pre-ordained guarantee of victory. We can prattle on about America’s being the “the last, best hope” all we want, but that doesn’t change the fact that a sizable number of our fellow citizens and an entire political party see that as a bad thing and want to change it.

The chief justice just threw up his hands and walked away from the central issue of the presidential campaign — no, not ObamaCare itself, but the relationship of the citizen to the state. There’ll be no deus ex machina this time. It’s up to us now.

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