Justice Stevens, ObamaCare, and the Constitution. Is federal power now unlimited?
To defend the nominee President Obama chooses to replace the liberal Justice Stevens, Democrats will be forced to say what they really believe about the Constitution and the limits of federal power.
With stormy midterm elections just ahead, and much of President Obama’s agenda still undone, the last thing congressional Democrats needed is the distraction of a difficult and protracted Supreme Court confirmation battle.Skip to next paragraph
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Yet that’s likely what’s in store after Friday’s announcement that Justice John Paul Stevens, the court’s liberal lion, is stepping down in late June. The party’s base, already disappointed with Mr. Obama, will doubtless press the president for a liberal replacement. But with the growing “tea party” movement raising long-ignored constitutional issues, even a moderate nominee will face questions congressional Democrats would rather leave buried.
Chief among those is that most basic question, brought to the fore by “ObamaCare”: Are there any longer any constitutional limits on federal power?
If Congress can reorder one-sixth of the nation’s economy, command states to establish insurance exchanges, and require individuals to buy insurance from private companies or face a tax, it would seem not. Yet the 19 states presently challenging such sweeping power will find little comfort in the decisions of Justice Stevens.
Coming of age during the New Deal, Stevens’s jurisprudence more often than not has reflected the dominant themes of that era: judicial deference to broad assertions of government power, especially over the economy, coupled with seemingly inconsistent assertions of judicial power to ignore the law in deference to “evolving social values,” all of which has given us modern “constitutional law” – not to be confused with the Constitution.
The Founders gave us a Constitution aimed at securing individual liberty through limited government, with most power resting in the states or, even more, in the private sector.
It wasn’t perfect, to be sure: In fact, it took a civil war to end slavery, and the Civil War Amendments to make the Bill of Rights good against the states. And there never was a “Golden Age,” as Jim Crow, Prohibition, and much else attest.
But from the start, the main idea was clear: Whatever the nation’s faults in practice, the point of life was to live it, freely, not dependent on government. Indeed, answering anti-Federalists’ fears that the new national government would be too powerful, Federalists detailed exquisitely the Constitution’s limits on federal power. Neither camp could have imagined anything like ObamaCare.
Well, all that changed when the social engineers of the Progressive Era, steeped in visions of the “public good,” came finally to power under Franklin Roosevelt.
When the “nine old men” on the court balked, saying the Constitution prohibited FDR’s schemes, the president threatened to pack the court with six new members. The plan failed, but the court got the message.
It turned the Constitution on its head, and the modern welfare state was born. A watershed moment came in 1942, when the court interpreted the Commerce Clause as giving Congress virtually unlimited authority over economic activity.