A century ago, the idea that the Constitution imposes limits on the federal government’s authority and that judges have a duty to enforce those limits would have been seen as a truism, regardless of one’s political affiliation. Yet today, this cornerstone of constitutionally limited government is under attack not just by those on the left, but by conservatives as well.
Steve Chapman’s piece, “A Conservative Defense of Obamacare,” which endorses former solicitor general Charles Fried’s argument that Obamacare is constitutional, exemplifies this conservative attack on the judiciary’s role in ensuring constitutionally limited government. At issue is a mandate in the new health care law that every individual either purchase health insurance or pay a fine. In response to rulings by two federal judges that the mandate is unconstitutional, Fried offers a dismissive response, noting that he knows of no other constitutional scholars who are also members of the right-leaning Federalist Society that agree with the rulings. Fried also notes that while one of the architects of these challenges, Randy Barnett, was a student of his, Fried only taught Barnett torts, not constitutional law.
But the notion that there are constitutional limits on Congress’s authority to micromanage individual economic decisions – and that judges should be serious about enforcing those limits – cannot be so easily dismissed. The constitutional challenges to the individual mandate represent a larger intellectual challenge to the sort of legislative and executive overreaching and judicial abdication that have transformed the Constitution from a charter of liberty into a source of virtually limitless government power. This argument presents a fundamental issue of constitutional interpretation that is worthy of earnest discussion and debate among legal scholars of all political persuasions.
Besides his appeal to authority, Fried offers a more substantive argument, that because health care is part of commerce, and because Congress has the power to regulate commerce under the Commerce Clause, the Necessary and Proper Clause provides that it may do so by any means it chooses–including a mandate that individuals purchase health insurance. But this position stretches both clauses well past the breaking point, and transforms federal power from limited to plenary. If Fried is right, there is almost no constitutional restraint on the laws Congress may pass or the obligations it may impose on individual citizens.
But the founders clearly had a different idea, and embedded a system of checks and balances in the Constitution to prevent a runaway federal government like we have today. They recognized that constitutional limits on government power are meaningless unless there is a judicial branch to enforce those limits. Today, we need a properly engaged judiciary to protect our right to limited government, because when courts fail to enforce constitutional limits on government power, we are left to rely on the self-restraint of Congress. And experience has shown that this is no restraint at all – it just leads to endless overreaching and the inevitable loss of freedom.
To be clear, this is not a call for so-called judicial activism. Rather, this is a call for judicial engagement. The question is not whether judges are being activist or restrained, but whether they are properly performing their role, which is to interpret and apply the Constitution. Conservatives who take seriously the concept of a constitutionally limited government need to engage and earnestly consider this position rather than dismiss it out of hand. We have learned to our great cost what happens when courts serve as little more than a rubber stamp for Congress. Now let us see what America looks like with a properly engaged judiciary and a properly restrained federal government.
Dan Alban is an attorney with the Institute for Justice. To learn more about judicial engagement, please visit IJ’s Center for Judicial Engagement at www.ij.org/cje