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As is already known, U.S. District Court Judge Roger Vinson of the Northern District Court of Florida declared that the Patient Protection and Affordable Care Act (Obamacare) was unconstitutional in its entirety. His 78-page opinion (Florida v. HHS) is remarkable for its depth of understanding how Obamacare violates the Constitution, specifically the Commerce Clause. In most rulings, Justices and judges will attempt to ascertain Congress’ intent on passing a law; Vinson, using both the Constitution and the Federalist Papers, delved into the intent of the Founders as well. Vinson even went so far as to use Obama’s campaign statements against the administration.
The left, including the Obama administration, is attempting to portray Vinson’s ruling as one of judicial activism. Nothing could be further from the truth.
The problem here isn’t so much that the left knows what judicial activism is, it’s that they attempt to redefine the phrase that suits their ideology; it ain’t the real definition as far as I’m concerned. Judicial activism is not merely the act of the courts overturning a law passed by a legislature, which is what the left would have us believe when overturning laws like Obamacare. It’s more than that.
Judicial activism is an attempt by the courts, in a judicial ruling, to rewrite legislation that conforms to the political ideology of the Justice or judge. As specified in the Article I, Section 1 of the U.S. Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The same holds true with legislatures of the various other levels of government within the United States. The courts at all of these levels have specifically defined judicial powers, the power to settle disputes based on the law; at the federal level, this is defined in Article III, Section 1. Chief Justice John Marshall’s Marbury v. Madison ruling stated this included the power of judicial review. I believe Marshall is right, especially when it concerns Constitutional issues. Unfortunately, true activist Justices and judges have frequently abused this power, especially after progressives were being nominated to the federal courts.
But it isn’t just laws on the books that are rewritten by members of the Judicial Branch. No, this extends to state constitutions and, more egregiously, to the U.S. Constitution itself. Scott v. Sandford saw a the Supreme Court ignoring the 5th Amendment so that certain people, primarily black slaves, were not considered as people with any human rights. We’ve seen this in the Wickard and Raich decisions that expanded the meaning of the Commerce Clause (the latter was unfortunately penned by Justice Scalia) allowing Congress to regulate completely local, non-interstate activity. In Roe v. Wade and Casey v. Planned Parenthood, the Supreme Court determined that preventing first trimester abortions and requiring a wife to notify a husband of an impending abortion were violations of the Due Process Clause in the 14th Amendment, again ignoring the 5th Amendment as the Court did in Scott. One of the worst decisions was the recent Kelo v. New London; Justices Stevens and Kennedy claimed the Takings Clause in the 5th Amendment authorized the various levels of government to use eminent domain to transfer property from one private party to another; they redefined the phrase “public use” such that greedy governments could use eminent domain to effect a transfer for the purposes of acquiring more tax dollars (ironically, New London lost out since Pfizer, Inc., the company the Kelo’s property was to be transferred to, backed out of the deal they had with the city; with poetic justice, New London is collecting nothing from the properties they stole). Lawrence v. Texas used the 14th Amendments Due Process Clause to overturn Texas’ sodomy law (read Thomas’ dissent; it’s classic). In the recent case challenging California’s Proposition 8 voter that defined in the California Constitution marriage between a man and a woman would only be recognized as marriages; District Court Judge Walker used his personal political philosophy to render to claim it violated the Equal Protection Clause of the 14th Amendment. Most recently, the two Obamacare cases that went in favor of the government attempted to expand the Commerce Clause to subject an individual’s inactivity as an act of interstate commerce to be regulated by Congress.
One of the most outrageous rewrites of the Constitution was in Roper v. Simmons, authored by Justice Kennedy. In it, he “found” that the 8th Amendment included an age restriction on who could be executed. I’ve checked, and it isn’t there. But Kennedy said it is. Defendant Roper committed a hideous murder when he was 17, was convicted, and sentenced to death; he had bound and gagged a woman with duct tape, drove her to a bridge over a river, and threw her in it still bound. Kennedy’s “legal” interpretation to overturn the sentence was based on two items. First, most of the states who still had the death penalty on their books would only use it on those who were over 18 years old when committing such crimes. Therefore, Kennedy concluded that “consensus” was a “legal” factor to be considered. The only time consensus matters in the law is when the Constitution is amended; so Kennedy “amended” the Constitution without going through proper channels. Second, Kennedy has determined that due to the UN Convention on the Rights of the Child, executing murderers under 18 years old would be an affront to that document. There’s only one problem; while Bill Clinton signed the treaty, it’s never been ratified by the Senate (nor should it). Therefore, it is not part of U.S. law; Kennedy had no business even referencing this treaty in his ruling. As a result of Kennedy rewriting the 8th Amendment to add an age restriction, he violated Article V, Article VI, and the 10th Amendment. (As a side note, Kennedy could revisit the consensus argument he used in Roper when deciding how he would rule in the present Florida v. HHS case considering a majority of the states want it overturned; the argument would still be legally invalid and activist, but it makes more sense in the Obamacare case than it did in Roper.)
Judicial activism doesn’t just occur when there are rewrites to the Constitution or the statutes. Our common law principles, inherited from England, allow Justices and judges use previous cases, precedence, to help with their rulings. Sometimes past cases are referenced, but not used as precedence since it may not fit a particular situation; this is true in Vinson’s ruling as a couple of potentially relevant cases, Wickard and Raich, are different enough from Florida v. HHS to be discounted. But an activist will use other activist rulings to justify their own judicial opinion, as was the case with the two Obamacare cases that went the government’s way; both Wickard and Raich were used as precedence. Roe v. Wade is constantly being used as precedence in various due process, equal rights, and privacy cases. In many cases, leftist who agree with these rulings use them to say it’s settled law. It’s a specious argument since the reality is that settled law is settled until it isn’t; that’s what happened with Plessy v. Ferguson.
Activists will also deliberately ignore precedence when it doesn’t fit their political opinions masquerading as judicial rulings. One of the worst examples of this is Hamdan. Here, President George W. Bush had created an Executive Order, based on a similar one written by FDR and sanctioned by the Supreme Court in Ex Parte Quirin, to establish military tribunals to prosecute terrorists captured during the War on Terror. Justices Stevens and Kennedy (again!) wrote opinions that ignored not only Ex Parte Quirin, but also another case related to prosecuting unlawful enemy combatants, Eisentrager. While they were right to reference the Geneva Conventions (the U.S. has signed and ratified them), Stevens decided that terrorists were nothing more than civilians who were to be accorded the right to habeas corpus and due process rights despite the fact that terrorists nowhere fit into the definition of either a lawful combatant or a civilian; additionally, there was an additional Protocol that defined terrorists, but the U.S. didn’t sign or ratify it because the Protocol requires terrorists to be tried under regular military and civilian justice systems. By the reckoning of Stevens and Kennedy, the spies that were the objects of the two WWII-era rulings would have to be considered as civilians as well.
The last example of judicial activism entails the activist claiming those in opposition to a ruling saying something when it turns out the opposition didn’t. The recent Heller and Citizens United cases show this. In his dissent in Heller, Justices Stevens and Breyer chastised the majority for claiming the majority said an individual has a right to defend themselves with a gun. If you read the opinions, Stevens and Breyer are misleading what the majority wrote. Justice Scalia, the author of the majority opinion, made no such claim. He said this:
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.
These are two separate rights; the latter is enshrined explicitly, the former is enshrined in the 9th Amendment. Scalia is saying an individual has the right to own any legal firearm as long as it is used for any lawful purpose, which would include when an individual exercises the right of self-defense. But Scalia isn’t trying to tie the two together.
The other case I mentioned above is the Citizens United case; the majority opinion was written by Justice Kennedy. Justice Stevens wrote an opinion that concurred in part and dissented in part. Stevens claims there is a time limit in the Free Speech Clause of the 1st Amendment. As was the case with Kennedy’s claim that there is an age limit in the 8th Amendment, Stevens attempts to rewrite the First Amendment, with the help of Justices Breyer, Ginsburg, and Sotomayor. Then he claims the majority rewrote the law in question, the Bipartisan Campaign Reform Act (aka, McCain-Feingold). Again, the majority did not rewrite those portions of McCain-Feingold that were overturned; if anything, Stevens is projecting since he and the other liberals on the Court are trying rewrite the First Amendment.
For the left, judicial activism means a ruling they don’t like, even if the ruling is based on the Constitution and not an attempt by the judiciary to rewrite law. The real definition of judicial activism is an attempt by the judiciary to usurp the legislative powers of those elected to pass laws or allowed to vote for amendments to state constitutions and the U.S. Constitution. This is not their function. It would do liberals well if they learned this; however, I’m not going to hold my breath waiting for them to get it.