By Ann Coulter
The reason tea partiers carried signs saying Read the Constitution! was that we were hoping people would read the Constitution.
Alas we still have Rick Santorum saying Obamacare is the same as what he calls Romneycare; the otherwise brilliant Mickey Kaus sniffing that if states can mandate
insurance purchases then were not talking about some basic individual liberty to not purchase stuff (no just the nations founding document which protects basic individual liberties by putting constraints on Congress);
and the former law professor Barack Obama alleging that a good example of judicial activism would be the Supreme Court (in his words a group of people) overturning a duly constituted and passed law.
I dont know how a court could overturn a law that hasnt been passed. Otherwise it wouldnt be a law it would be a bill. If it hasnt even been constituted it wouldnt be anything at all.
Of course the courts can overturn laws -- constituted and passed alike! If anything the Supreme Court isnt striking down enough laws.
Suppose Congress passed a law (after constituting it) prohibiting the publication of books about Hillary Clinton. That would be a violation of the First Amendment and the courts should strike it down. Failing to strike down such a law would be judicial activism.
Thats the judiciarys job which has been pretty well established since the 1803 case Marbury v. Madison heretofore the second most sacred opinion in the liberal canon. (Roe v. Wade is the first most sacred.)
Marbury captured the imagination of liberals only relatively recently when they realized that simply as a procedural matter the courts have the last word.
The judicial branch isnt above the other two branches -- much less the states or the people. It is (one of my favorite words) co-equal to the other branches. Indeed the judiciary was laughably described by Alexander Hamilton in The Federalist Papers as the least dangerous branch.
Anticipating nearly every form of government corruption our framers specifically designed the Constitution to prevent tyranny. But they never imagined the perfidy of 20th-century liberals. (Probably because the framers didnt have NBC.)
What liberals figured out -- and were mendacious enough to exploit -- is that there is no obvious recourse for the other branches if the Supreme Court issues an insane ruling. So beginning in the 1960s liberals on the court started issuing insane rulings on a regular basis. Rather than referring to the Constitution some of their opinions were apparently based on the dream journal of Andrea Dworkin.
Soon every law student could recite in his sleep Chief Justice John Marshalls line in Marbury: It is emphatically the province and duty of the Judicial Department to say what the law is. So shut up and go home.
To take one example of a ludicrous ruling at random off the top of my head: In 1973 the Supreme Court announced that the Constitution mandates a right to abortion.
The Constitution says nothing about reproduction contraception fetuses pregnancy premenstrual syndrome morning sickness -- much less abortion. (As the tea partiers say: Read the Constitution!)
It does however expressly grant to the states those powers not reserved to the people (such as the right to bear arms) or explicitly given to Congress (such as the right to regulate commerce with foreign nations among the several states and with the Indian tribes).
Obviously therefore the Constitution implicitly entrusted abortion laws to the states.
One hint that a constitutional right to abortion is not based on anything in the Constitution is that during oral argument as the lawyer arguing for this apocryphal right ticked off the constitutional provisions allegedly supporting it -- the Due Process Clause the Equal Protection Clause the Ninth Amendment and a variety of others -- the entire courtroom burst into laughter.
The ruling in Roe incidentally struck down the duly constituted and passed laws of all 50 states. (But that is soooo 53 million abortions ago ...)
When conservatives complain about judicial activism this is what theyre talking about: Decisions not plausibly based on anything in the Constitution.
Curiously the only court opinions liberals really get excited about are the ones having nothing to do with the Constitution: abortion nude dancing gay marriage pornography coddling criminals etc. etc.
Liberals try to hide their treachery by pretending that what conservatives are really upset about is the Supreme Court striking down any law passed by any legislature. This is a preposterous lie that could fool only the irredeemably credulous.
Which brings us to the brilliant ex-law professor who manifestly doesnt have the faintest understanding of the Constitution.
On Monday President Obama shocked even his fellow liberals when he claimed that it would be an unprecedented extraordinary step for the Supreme Court to overturn a law that was passed by a strong majority of a democratically elected Congress. (Which Obamacare wasnt.)
He added: Id just remind conservative commentators that for years what weve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint.
I guess now we know why Obama wont release his college and law school transcripts!
It was so embarrassing that Obama attempted a clarification on Tuesday but only made things worse. He said: We have not seen a court overturn a law that was passed by Congress on an economic issue like health care since the 30s.
Except in 1995. And then again in 2000. (Do we know for a fact that this guy went to Columbia and Harvard Law?)
In the former case U.S. v. Lopez the Supreme Court struck down the Gun-Free School Zone Act -- which was by the way a duly constituted and passed law! And then the court did it again in U.S. v. Morrison when it overturned another duly constituted and passed law the Violence Against Women Act.
Both laws were defended by the Clinton administration as economic regulations passed by Congress pursuant to the Commerce Clause with arguments as stretched as the ones used to defend Obamacare. The Gun-Free School Zone Act for example was said to address the economic hardship health care costs insurance costs and unwillingness to travel created by violent crime.
Conservatives want the rule of law not silence from the judges. Not striking down an unconstitutional law is judicial activism every bit as much as invalidating a constitutional one.
Ann Coulter is a columnist and author of Guilty: Liberal Victims and Their Assault On America.
