A Question That Won't Go Away

An article in First Things entitled "The End of Democracy? The Judicial Usurpation of Politics." It seriously examined whether the wholesale departure from constitutional order had, in fact, led to the kind of regime in America that was no longer legitimate.

Strong brew, of course. Several of the magazine's board members resigned. Even though they largely agreed with the descriptive side of the case, they reacted strongly to the stark conclusion that many Americans may no longer feel a need for loyalty to such a regime.

That symposium makes for good reading in light of the somewhat superficial arguments that swirled around the Supreme Court hearings on Obamacare last week. Sixteen years ago, it took a group of distinguished thinkers to point out the deep problems within our polity. Today, just about anyone who pays attention can see the large dimensions of the threat (two-thirds of Americans want the healthcare reform modified or repealed).

But even if the law is struck down, it's only temporary relief for a deep-seated set of issues that will, beyond all doubt, soon be back to haunt us.

According to reports, the justices already voted on Friday whether to void the individual mandate in Obamacare and, perhaps, the whole healthcare law. Justice Kennedy, the expected swing vote, weighed in heavily during oral arguments about the "high burden of justification . . . when you are changing the relation of the individual to the government." He even suggested that judicial restraint might lie in simply voiding the whole thing, not trying to decide which of the 2700 pages might stand.

Justice Scalia had some fun, asking whether the government might next require us to eat broccoli, and Chief Justice Roberts wondered whether everyone will have to buy cell phones to report medical emergencies. It's quite easy to mock powers government is now claiming, almost unconsciously, since limited government is an almost dead notion. When Nancy Pelosi was asked about the constitutionality of Obamacare, she replied, "You can't be serious?"

The Court was very serious last week...

ROBERT ROYAL (CERC)