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John Hood: Judicial activism needed amid overreaching power

By John Hood

RALEIGH — During a March 27 talk at North Carolina State University, Georgetown University law professor Randy Barnett told the assembled faculty, students and other members of the audience that many of his allies on the political Right were wrong.

Barnett is a libertarian who has helped craft or argue several high-profile cases before the U.S. Supreme Court, including the constitutional challenge to the Affordable Care Act that reached the high court in 2012. While Obamacare wasn’t struck down, Barnett’s argument — that the U.S. Constitution did not assign to Congress the power to compel Americans to purchase a product such as health insurance — actually prevailed.

Most justices agreed with the plaintiffs that, as Chief Justice John Roberts put it in the majority opinion, to affirm the Obama administration’s defense of the mandate to purchase federally approved health plans would constitute “fundamentally changing the relation between the citizen and the federal government.” Famously, however, Roberts then retroactively rewrote the ACA in his ruling to transform a fine for not complying with the individual mandate into a federal tax.

No one disputes that the federal government possesses the power to tax, so Roberts’ legal gimmick kept Obamacare alive. Barnett, among other constitutional scholars, took comfort in the fact that the Supreme Court had recognized the validity and importance of doctrine of enumerated powers, which states that Congress can’t just enact laws about anything a majority might want to tackle at a given point in time. Scholars also took comfort in another part of the decision that blocked the Obama administration’s attempts to force states to expand Medicaid, another affirmation of constraints on federal power.

Still, as Barnett wrote in his new book “The Republican Constitution,” the result of the Obamacare challenge was unsatisfying. For Roberts to bend over backward to preserve a law passed by Congress was, in many ways, the logical outcome of decades of conservative arguments in favor of unelected judges deferring to elected officials when it comes to claims about rights, responsibilities and powers.

“The chickens of the conservative commitment to judicial restraint had thus come home to roost,” he observed.

In his book and his talk at N.C. State, Barnett traced the history of the U.S. Constitution and its interpretation by different generations of Supreme Court justices. Sometimes, the prevailing view was that the operating principle of American government is and ought to be rule by the majority.

Barnett calls this conception the “Democratic Constitution.” At other times, the prevailing view was the text and architecture of the U.S. Constitution and other founding documents were intended to limit the ability of majorities to injure or nullify the fundamental rights of minorities, a conception he calls the “Republican Constitution.”

For Barnett, a key phrase is that free governments are instituted with “the consent of the governed.” This can’t simply mean that everyone agrees to live under any policy adopted by 50 percent plus one of elected politicians. Rather, Barnett suggested that free individuals wouldn’t consent to be governed in the first place if they had good reason to fear their fundamental rights would be endangered by that government.

Checks and balances, the doctrine of enumerated powers, explicit protections of some individual rights, and implicit protections of other individual rights (found in the Ninth and 10th amendments) were necessary in order for the federal government to secure such public consent. Barnett believes that one of the roles of federal judges is to enforce those provisions and limitations, even if that means actively striking down federal laws. It’s not enough to “debate what the constitution means,” he wrote in “The Republican Constitution.” “We also need to debate the proper role of judges in enforcing that meaning.”

If judicial activism consists of crafting public policy, that’s wrong. Courts aren’t legislatures. But if judicial activism consists of standing up to elected lawmakers and executives when they seek to exercise power they don’t really have, that’s not only permissible but obligatory.

Judicial restraint in the face of tyranny is no virtue.

John Hood is chairman of the John Locke Foundation.

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