May 24, 2013

What is the role of the Supreme Court, anyway?

From the dissenters to the ACA decision:

“The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

So much for making the hard calls as a referee.

Misdiagnosis: Judicial Activism « James Madison Institute

In the wake of the latest in a series of cases on the Affordable Health Care for America Act–Obamacare to its detractors, the Holy Grail of legislation to its defenders–the pejorative of “judicial activism” has been leveled  at Judge Roger Vinson and his ruling striking down the law.

While the White House avoids using the term judicial, they disagree with the ruling.  Attacking the merit of the ruling, the White House appeals to the strength of numbers, saying that“This ruling is well out of the mainstream of judicial opinion.”

Despite the appeal to numbers, the constitutionality of an act of Congress isn’t really dependent on a majority.

In reality, upholding the U.S. Constitution’s limits on governmental authority is a proper exercise of judicial authority. Indeed, the doctrine of judicial review has been recognized ever since the landmark case of Marbury v. Madison in 1803. And Judge Vinson’s ruling is far from an abuse of that authority.

via Misdiagnosis: Judicial Activism « James Madison Institute.

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