The Daily Hatch

http://www.cato.org/event.php?eventid=9074

Cato Institute Senior Fellow and Georgetown University law professor Randy E. Barnett discusses the arguments to be presented to the Supreme Court beginning March 26.

E.J. Dionne Forgets that America Is a Constitutional Republic

March 29, 2012 by Dan Mitchell

My daily email containing the editorials and opinion columns from the Washington Post included an item written by E.J. Dionne entitled “Supreme Court activists: Conservative justices forget we’re a democracy.”

Surely this was a mistake.

• Doesn’t Dionne know that the Constitution was adopted in part to protect basic freedoms from untrammeled majoritarianism?
• Is he unaware that Article 1, Section 8 lists “enumerated powers” of the federal government, and that health insurance isn’t mentioned?
• Did he forget that America is a constitutional republic, or perhaps was never taught?
• Did he not learn about separation of powers in school, and that the courts are supposed to protect us against tyranny of the majority emanating from the legislature?

I suspect he does understand, at least with regard to the first question. For instance, I’d bet a lot of money that he was correctly in favor of the Court’s decision to protect flag burning as a form of political speech, notwithstanding public opinion and congressional approval.

But he seems to join with other leftists in treating the interstate commerce clause as some sort of blank check for federal intervention into every aspect of our lives. And it shows up in various ways in his column.

…conservative justices are prepared to act as an alternative legislature…discussing whether parts of the law could stand if other parts fell… Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship. …This is what conservative justices will do if they strike down or cripple the health-care law. …a court that…sees no limits on its power, no need to defer to those elected to make our laws.

At the risk of being blunt, the conservative justices are doing exactly what they should be doing. They’re deciding if a law enacted by Congress is consistent with the powers granted to Congress by the Constitution.

America has a democratic form of government, but we are not a democracy. At least not in the sense that 51 percent of the people have the unlimited right to rape and pillage 49 percent of the people.

I have no idea of the Supreme Court will make the right decision, but I am overwhelmingly confident that the Founding Fathers didn’t envision mandated health insurance as a function of the federal government.

But maybe I’m just too old fashioned, because when I peruse the enumerated powers, I don’t see any authority for a Department of Energy either. Or a Department of Agriculture. Or a Department of Commerce. Or Department of Housing and Urban Development. Or Department of Education. Or a Department of Transportation. Or…well, you get the idea.