The Professor's Notes

Where my thoughts and your eyes (and now ears!) collide

Last night over on Facebook  we had a rather good and amicable discussion about Obama, and the trend in government to rule the people rather than be ruled by the people. I made a claim that Obama is seeking to undermine the authority of the Supreme Court. Several (correctly) pointed out that many conservatives have argued for years that the Supreme Court should not be “activist” and should not “legislate” from the bench.

The argument generally falls on the view that the Court should follow the “strict constructionist” view–that is, it is there to assess the constitutionality of laws, not create new rights or laws. And this is where Obama’s criticism, and the criticism from the right, diverge. President Obama said he was:

“confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress, and I just remind conservative commentators that for years, what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a dually constituted and passed law.”  (Emphasis added)

He is a brilliant orator. He essentially argued that the will of the majority of the people should trump the constitutionality of a law, while covering his argument with the cloak of “you did it too.” The passing and signing of a law doesn’t make it “dually constituted” and certainly doesn’t make it constitutional. Regardless of how strong the majority was that passed the law. In fact, a law that passes unanimously through Congress must still pass Constitutional muster.

So let’s be clear here: Congress passed a law, and the President signed it. The law is being judged in this case solely and completely on the constitutionality of specific clauses of the law, based on long standing understandings of the intent and interpretations of the Constitution. If anything, that is exactly the role conservatives have been calling for the Court to play. To argue that Obama’s position, and those on the Right who criticize the Court, are the same, is simply specious.

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