Lecturing the Supremes
By John D. Turner
23 Apr 2012

"Overturning the law would be ‘an unprecedented, extraordinary step’ since it was passed by a majority of members in the House and Senate. I just remind conservative commentators that for years we've heard that the biggest problem is judicial activism or a lack of judicial restraint. That a group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step." – President Barack H. Obama, comments on Supreme Court overturning his healthcare law, 4 April 2012

We were told that his is quite possibly the smartest guy to ever hold the office of President; quite possibly the smartest man to tread the Earth since Albert Einstein (albeit in a different sort of way). We were told, when he was running, that as part of his qualifications he is a constitutional scholar, having taught constitutional law at the University of Chicago. So brilliant is he, the first “post racial” president, that he was awarded a Nobel Peace Prize shortly after taking office, for taking office, I suppose since I can’t see anything else he had done in his 50 years on Earth to deserve one.

Perhaps the Nobel Committee might want to consider taking the prize back, as he hasn’t done anything in the intervening three years to deserve one either.

In fact, perhaps those who took his Constitutional Law class at the University of Chicago should ask for their money back also, as apparently he has little understanding or regard for the Constitution as well. He might be qualified after his term in office however to teach a class in “ushering in the post-American era.”

Rarely have I heard a more inane, totally stupid utterance from an American president than that voiced by President Obama in his recent attempt to lecture the Supreme Court on the proper ruling they should deliver on the Affordable HealthCare Act, aka ObamaCare. I would ask the question “does he think we are idiots,” but I need not, for apparently he does. And, in the case of a large segment of society, particularly those on the left, he is correct; we are.

And I thought Joe Biden was bad. Let’s take this a piece at a time.

“Overturning the law would be an unprecedented, extraordinary step...”

As Rush Limbaugh frequently says, “words mean things.” So what do these, two key words, “unprecedented” and “extraordinary” mean exactly?

Unprecedented: Having no previous example; without previous instance; never before known or experienced; unexampled or unparalleled. Synonyms: unique, extraordinary, exceptional, novel.

Extraordinary: Beyond what is ordinary or usual; highly exceptional; remarkable. Synonymns: aberrant, abnormal, anomalous, atypical, exceptional, freak, odd, peculiar, phenomenal, preternatural, rare, unique.

So, based on the definitions above, in order to believe the President’s statement, we would have to conclude that never before in the nation’s history has the Supreme Court of the United States overturned a law penned and passed by the House and Senate. That is what the word “unprecedented” used in this context would lead us to believe. The second part of the statement is even more jaw-dropping.

“…since it was passed by a majority of members in the House and Senate.”

Well, if it was passed by a majority of members in the House and Senate, then it has to be good, doesn’t it? Only one problem here; all laws are passed by a majority of members in the House and Senate. That is how they become laws.

Surely, our “constitutional scholar” is aware that all laws are passed by a majority of members in the House and a majority of members in the Senate (and signed by the President or passed over his veto on a 2/3 vote in both houses) before they become law?

Putting both pieces of this statement back together, it would mean that not only has no law has ever been overturned by the Supreme Court since the only way that it could possibly be “unprecedented” would be if no law had ever been overturned, otherwise it couldn’t possibly be unprecedented, since unprecedented means literally that it has never happened before, but that it could not possibly ever happen, since all laws are passed by a majority of the House and Senate. The inability to hold judicial review of federal laws would do away with a primary function of the Supreme Court enumerated in Article III Section 2, and would deal a serious blow to our liberty as citizens since the Congress would then be free to pass whatever laws struck their fancy.

Funny thing; seems to me like there are those in Congress who already hold this belief to be true.

Continuing with his statement: “I just remind conservative commentators that for years we've heard that the biggest problem is judicial activism or a lack of judicial restraint. That a group of people would somehow overturn a duly constituted and passed law.

Well. How dare “a group of people,” i.e, the U. S. Supreme Court (or any court), even think of overturning a “duly constituted and passed law!” Except of course, that it happens all the time. How many times have the citizens of California passed referendums only to have them overturned by the state courts or the 9th Circuit Court of Appeals?

How many times has the U.S. Supreme Court overturned a law? Since its inception over 150 federal laws and hundreds of state and local laws have been overturned by the U.S. Supreme Court, so I think it is safe to say “a time or two” anyway; hardly “unprecedented” or “extraordinary” in any event. Doesn’t seem there is any particular protection afforded to a “duly constituted and passed law” whatever that means anyway. What other kinds are there? If they aren’t “duly constituted and passed,” they aren’t laws.

Well, except for Executive Orders. Don’t get me started on Executive Orders.

Surely, our “constitutional scholar” is aware of these items. Surely he has, during his lifetime, seen a law struck down by the SCOTUS.

So what is the real agenda here? Intimidation? That has been tried before. Remember the scathing rebuke the POTUS delivered to the SCOTUS at the SOTU in January, on national television, with the Justices front row and center? To thunderous applause by the Democrats assembled, I might add. (OK, so perhaps not the best link – but I was rushed, and a quick, basic Google search failed to turn up links by the MSM – already pulled them I suspect; and this one contained the actual video. Do a little homework yourself!)

Perhaps what the President is really doing is setting the stage for a little public outrage and political activism when the Supreme Court announces its decision, should that decision go against him. The President says the Supreme Court is acting in unprecedented manner; if the President says so, then it must be true, mustn’t it? How many people out there actually know what the job of the Supreme Court is anymore? The President is pandering to his base; high-school dropouts, illegals, leftists, minorities, you name it; people who don’t really care about whether the law is actually constitutional or not. People who, instead, are more concerned that their Obama goodie bag is about to be snatched away from them.

The President has said it himself; “without an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get healthcare. So, there’s not only an economic element to this and a legal element to this, but there’s a human element to this and I hope that’s not forgotten in this political debate.”

Constitution be damned, it is a necessary part of a necessary bill that is for the greater good! All it takes is for five justices in black robes to agree and bammo! It’s constitutional by decree if not by the letter of the document. And doggone it, they had better agree!

Supreme Court justices can, after all, be replaced; indeed they will eventually all be replaced one way or another. What after all, can a president not accomplish, if backed by the overwhelming will of the American people? What indeed, could a president accomplish were there some kind of national emergency; perhaps civil unrest so great that a president felt the need to invoke some of those long-standing executive orders, put in place just in case such an emergency were ever to occur? Perhaps like the one President Obama signed just last month?

What could an American president not accomplish, if given unlimited power and a mandate by the people?

And once again, words mean things; in this case, the term “judicial activism.” In his statement, Mr. Obama chides “conservatives” as being hypocrites when it comes to “judicial activism,” which he correctly states is a pet bugaboo with the right. However his definition of “judicial activism,” namely “that a group of people would somehow overturn a duly constituted and passed law,” is selectively put forth to bolster his argument, and is not really what is meant by the term, at least as conservatives understand it. In fact, he is calling for “judicial activism” himself, to declare a law constitutional simply because he is in favor of it and thinks it a good idea. Conservatives would call this sort of activism “legislating from the bench.”

It is one thing to overturn a law because it is in clear violation of the constitution. Indeed, that is what a court is supposed to do. It is quite another thing when a court invents a reason to overturn (or maintain) a law on “constitutional” basis, or makes up a reason out of whole cloth, finding hitherto for unknown “rights,” stemming from “penumbras and emanations” of other constitutional protections. You may as well just say “I thought it a good idea, so I went with it.”

Treading this path is dangerous in the extreme. You may get what you want this time. But what happens next time? Either the Constitution means what it says, or it is not worth the paper on which it is written. It is not a “living breathing document,” to be interpreted anew by whatever administration is currently in power. It is a piece of paper with words on it. It does not speak, think, or interpret itself; people do. To allow the government to say that it means whatever they say it means, means it says nothing of any value to us as individuals. It offers us no protections, if the government can change its meaning at will.

The Constitution was written to set forth the framework of our government and to protect we the people from the tyranny that governments throughout history have imposed. To allow the government to interpret it in any manner they so choose is (or to ignore it entirely) and expect to retain our freedoms is to suppose the existence of some virtue that so far in the history of mankind, governments have never displayed.