No matter what decision the Supreme Court reaches regarding Obamacare, the SCOTUS is and has been acting unconstitutionally for decades since FDR. The US Constitution is clear on the role of the court as are the Federal Papers and the many correspondences between the founders about its role simply as arbiter not legislator. Legislation and law were intended to be introduced and voted on in the House first and foremost. The Constitution is clear about who holds the law making responsibility. There is no alternative including interpretations of laws by the SCOTUS. They were only meant to validate or invalidate a laws legitimacy based on the founder’s intent.
Let’s start with the intent. The intended purpose of the Constitution was to limit Federal Power. The clearest and easiest evidence to understand and to support that is the Tenth Amendment. Why else would the founders/states have insisted on this addition if the intent was not to limit central power? The US Constitution would not have been ratified without the guarantee of the Bill of Rights which includes the 10th Amendment. The Bill of Rights in total underlines the distrust the states and the people had for this newly formed central government. Today it is painfully apparent how little the power of the Tenth Amendment has been utilized in the fight to curb centralized programs, but it has seen a renewed commitment to make it relevant again.
The SCOTUS was intended by the founders to simply be the referee to ensure the legislature was only passing laws that met the limits and protections within the constitution. Madison believed the role would be utilized on a very limited basis and in the federal papers he insists the concern about precedence was unwarranted. He suggested that every case that came before the SCOTUS would be looked at from the perspective of the original intent and not subsequent cases. How wrong he was. The precedence of the SCOTUS has been used to rewrite original intent to mean whatever the court wanted it to mean. This has been seen with the Commerce Clause. Its intent was to make trade regular between the states so there was a “uniform” set of laws guiding how the states traded. The coastal states could have easily introduced additional tariffs and taxes to the other states due to their proximity and importance in the delivery of foreign goods. It was not intended to be used as a way for the federal government to force the states to comply with its wishes simply because they participated in commerce. It was more efficient to have one representative dealing with foreign governments and trade agreements so the states would not have 13 different sets of rules that could be used to divide and create mischief by foreign governments especially France and England.
There have been a number of torturous interpretations based on precedent and ideology that have slowly but surely undermined our freedoms and decisions as a people. The suggestion that if we buy something or make something that is considered “commerce” that that becomes a reasonable opportunity for the federal government to regulate it and tax it to pay for the regulation is a warped view of the constitution. There is no requirement of the SCOTUS to consider any previous cases. That is what they need to do in the Obamacare case. They need to read and look at the original intent of our constitution.
That is where the crux of my argument lies. We now have a completely politicized process that does not fundamentally begin with a review of the constitution; it begins from the ideological views of the justices. As a conservative I pray the more conservative judges begin with the constitution in this healthcare case. But no one person can argue that every decision of late that the SCOTUS has ruled on is based in politics. Yes they occasionally reference the constitution but too often reference precedence. Completely opposite of what Madison argued would be the case.
The growth and intrusiveness of the Federal Government is being refereed by a party (SCOTUS) that has a self interest in the growth of that same government. If President Obama gets to choose two or more justices for the Supreme Court does anyone believe it will be a legitimate institution to protect our founding document? We will have reached the point of a nine person dictatorship if the SCOTUS becomes all powerful in the making and determining our future laws and original intent of the Constitution.
The states and the Governors of those states along with the legislatures need to take up the cause of liberty and limited federal power. They can do that by nullifying the laws they disagree with and believe are unconstitutional. Nullification is a legitimate course of action found within the constitution. We can’t rely on the Supreme Court for much longer because it is already politicized but if this president gets a few more picks it will no longer be on the side of the people and the states.
It is time for the states and the people to read, understand, and protect the US Constitution. It is the greatest weapon in the fight for liberty. Much more reliable than any SCOTUS.