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Thursday, March 29, 2012

What will Kennedy do?

According to all sorts of different pundits the fate of Obamacare hangs by the opinion of Justice Kennedy. Kennedy, though conservative, is considered a swing vote because of his strong convictions toward judicial modesty....which unfortunately tends towards deference to Congressional power.

If ObamaCare is upheld because of Kennedy's preference toward "judicial modesty" Conservatives can blame the logic they used to fight the culture war. By defending "family values" (whatever that means) and "morals" (which, ironically, cannot be imposed by force) conservatives followed old school progressive thought that the Court should not overturn popularly created congressional laws.

That is wrongheaded. The court should vigorously overturn any Congressional law that violates the constitution... I just wish there wasn't so much bad precedent like Wickard v. Filburn for our government to justify more and more intrusive laws.

I'm also interested in what the progressive justices are asking in the court. Everyone assumes they will march lockstep in support of Obamacare but is this because they have carefully weighed the constitutional merits of the case? This is a big concern because it seems modern American progressives guffaw at constitutional questions - they don't take it seriously. Flaunting the foundational law of the U.S. is dangerous because the very principal was to limit the power of the government to protect the liberty of the people (government has a long, very long, history of oppression). I'm particularly concerned because it seems progressives have abandoned constitutionalism in favor of "the end justifies the means" approach.

Wanting to help the poor is great. Wanting to help the poor by blatantly violating/ignoring the constitutional law protecting the rights of others is morally wrong.


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