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Obamacare: Will the Court Vindicate Itself?


If there has ever been a case that could vindicate the Supreme Court as a guardian of liberty or incriminate it as freedom's thief, it is the court's present consideration of the Affordable Care Act.

At the founding of the republic, the Anti-Federalist opponents of the Constitution warned that to grant the power to declare laws unconstitutional to an unelected and life-tenured Supreme Court could subvert the democratic republic and threaten our liberties.

In the Anti-Federalist papers, "Brutus" argued that though there would be strong checks on the other two branches of government, the power of judicial review would give the court the final say in overturning laws enacted by the people's elected representatives in Congress and make the unaccountable judicial branch superior to the elected legislative branch.

Brutus wrote: "The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. ... The judges in England are under the control of the legislature ... but the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. ... (The authors of the constitution) have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions."

This was particularly dangerous, argued Brutus, because "when great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it." And "this responsibility, he said, "should ultimately rest with the people."

But under the proposed constitution, he noted, the court would be "independent of the people, of the legislature, and of every power under heaven." Anticipating Lord Acton's now-famous maxim that "absolute power corrupts absolutely," Brutus continued, "Men placed in this situation will generally soon feel themselves independent of heaven itself." Indeed, Brutus observed that judges could only be removed for improper conduct or "high crimes and misdemeanors"; they could not be impeached for errors in their judgment.

Alexander Hamilton fought back in Federalist No. 78, pointing out that the judicial branch would "always be the least dangerous to the political rights of the constitution," because it would "be least in a capacity to annoy or injure them." By this, he meant that the judicial scope and function was much more narrowly prescribed than those of the other two branches.

"The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."

To reinforce the idea that the judiciary was to be a weaker, passive branch — only empowered to hear cases brought to it — he wrote, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In fact, he said, "the judiciary is beyond comparison the weakest of the three departments."

Hamilton argued that contrary to assertions that judicial review would dilute republican government — divesting elected representatives of their authority — it actually would strengthen it, because the court would ensure that the Constitution, which is the ultimate expression of the people's will, would remain superior to mere acts of legislation. He also anticipated that scholarly men of virtue, independent of political pressures, would render their decisions based on the law and facts.

It can hardly be denied that some of Brutus' fears have been realized through the years. The courts have hardly remained as limited in scope or as passive as theory suggested they would be. The court has, in many areas, become a super-legislature of expansive scope and, as a practical matter, is not always a passive body, because activist groups have become so mobilized, organized and manipulative that they can manufacture a "case or controversy" on almost any important issue at the drop of a hat. Plus, though most Supreme Court justices have indeed been learned, many have long since abdicated their duty to interpret the Constitution dispassionately and have adopted an activist, results-oriented approach to jurisprudence, which has systematically corrupted the integrity of the Constitution and, thus, of the rule of law and republican government.

The question is whether the court will strike down the manifestly unconstitutional Affordable Care Act and vindicate Alexander Hamilton or uphold it and thereby hammer yet one more nail in the coffin of this nation's precious liberty.

David Limbaugh is a writer, author and attorney. His latest book, "Crimes Against Liberty," was No. 1 on the New York Times best-seller list for nonfiction for its first two weeks. Follow him on Twitter @davidlimbaugh and his website at To read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at



5 Comments | Post Comment

David quoted:
though most Supreme Court justices have indeed been learned, many have long since abdicated their duty to interpret the Constitution dispassionately and have adopted an activist, results-oriented approach to jurisprudence, which has systematically corrupted the integrity of the Constitution and, thus, of the rule of law and republican government.

This is exactly what happened when Bush was selected by a REPUBLICAN controlled court. As long as Judges like Robert's are put in place by their political cronies, the court will always be unfair. The same arguments took place when Medicare was decided, in essence, an federal program to make sure seniors could survive. if it wasn't for passage of Medicare our seniors, which many are living in nursing homes, some for more than 20 years, would be sleeping in the streets with no shelter or medical care. Seniors are booming as the baby boomers are reaching 65, dementia is climbing and we can all look forward to long term care and medical needs. Seniors are living longer and many are living sicker. Obamacare needs to pass, it is a federal program of immense proportions, just like other federal programs that guarantee the wellbeing of our citizens.

Fight it if you like David, the time has come, it has nothing to do with socialism, it has to do with we are our brothers keeper. Otherwise we are no better than India and Africa and no different than the "Grapes of Wrath", if you don't have money you starve or sleep in the park. How long do you think hospitals can keep going with 46 million Americans having no insurance, your insurance pays for every person who is uninsured. The economics are untenable. Obamacare needs to pass and now, like Medicare and Medicaid, it is huge and expensive, but I don't want to live in India or Africa where you die in the gutter if you have no money.
Comment: #1
Posted by: Bloom Hilda
Mon Mar 26, 2012 12:32 PM
I place my bet on the Supreme Court upholding the constitutionality of the Affordable Care Act. The Supreme Court has a liberal bias and Courts in general have become accustomed to legislating from the bench. The Federal government has clearly overstepped their authority according to the constitution and the legislators just don't care. I feel the Supreme Court won't care about constitutionality either, even though that is the essence of their job.
Perhaps if people like you keep it up justices will start to see how their legislation from the bench is not the function of the court system, and will be aware that others are actually watching.
Keep up the good work David.
Comment: #2
Posted by: C Moellers
Mon Mar 26, 2012 7:36 PM
Bloom. I thought conservatives were supposed to be the ones who saw conspiracy around every corner. There are several differences concerning Medicare and the Affordable Care Act. The biggest is the Federal Government madating that all citizens purchase a commercial product. The two programs are not the same. As for your quote about being your brothers keeper....if that were true then concerned children would care for their parents instead of dumping them on the streets or in nursing homes. I can only imagine all those poor old folks roaming the hard streets before Medicare came into existance.
Comment: #3
Posted by: david
Tue Mar 27, 2012 10:48 AM
Re: david

David, Obamacare does not mandate that all citizens purchase a commercial product, Medicare, Medicaid, employer insurance will not change and are not mandated. Medicaid will expand to cover higher incomes, Don't worry, to the detriment of all of our citizens, and our shame that 46 million have no insurance, I think the Republican bought and sold Supreme Court will strike down Obamacare. Don't worry though, the conservatives will sleep well...

The conservative Mantra:

Screw you 46 million, I've got mine
Comment: #4
Posted by: Bloom Hilda
Thu Mar 29, 2012 6:01 PM
The liberal mantra, let's shrink the pie, redistribute it, and reduce the quality of care so everyone is equally miserable and unmotivated except of course for the corrupt, elitist politicians who will continue to live the good life and get the best care.
Comment: #5
Posted by: Thetruth
Sat Mar 31, 2012 9:17 AM
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