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Health Care Mandates and the Emptiness of "Judicial Activism"

Epithets like "judicial activism" assume that there are areas of governmental activity that the courts simply have no business meddling with -- this is wrong.
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Federal District Judge Roger Vinson Monday issued an opinion striking down, in its entirety, the Obama administration's health care reform act. The law's mandate that every individual purchase health insurance, the judge ruled, went beyond Congress's power to regulate interstate commerce and, since the individual-mandate provision could not be severed from the rest of the law, the whole thing had to go.

The judge's ruling, like the rulings in similar lawsuits in Virginia and Michigan, is sure to excite commentary about the proper role of judges in our society. And tragically little of that commentary will actually involve an honest debate about either the Constitution or the important role judges play in enforcing it.

With certain exceptions, the debate over the constitutionality of the individual-insurance mandate has broken down into a familiar pattern. On one side of the debate, people point out that the Constitution gives Congress only limited powers, and that these powers don't extend to mandating that individuals take particular steps like purchasing health insurance. On the other side, people point out that the Supreme Court generally lets Congress get away with whatever it wants.

The problem, of course, is that this isn't a debate at all. Those are just two separate true statements. It's the rhetorical equivalent of countering an argument about the likely winner of the Super Bowl by pointing out that basketball players are tall--and reciting truisms does nothing to advance the national debate.

As I see it, there are three basic questions in any constitutional dispute: (1) Does the Constitution allow the government to do what it's doing? (2) Is that a good thing? (3) What should courts do about the answer to question (1)?

To be clear, the first two questions are fair topics for dispute and debate. We should be worried about what the Constitution means, and we should question whether we like that meaning or whether we should support a constitutional amendment. But we should bear in mind that they are separate questions: What the Constitution says and what it would say if I had my druthers are both questions worth talking about, but they are not questions that will always have the same answer.

But all too often people pretend to be addressing the first two questions when they're really making an argument about the role of courts. Indeed, less than an hour after the 78-page opinion was made public, it was already being decried as "judicial activism." (It's like they could tell it was "activist" without even reading it!)

Epithets like "judicial activism" assume that there are areas of governmental activity that the courts simply have no business meddling with -- that, no matter what the Constitution requires, courts shouldn't bother enforcing those requirements. This is wrong -- and not just wrong, but dangerous. In our constitutional system, courts are meant to be a bulwark of liberty, keeping the other branches of government in check when they overstep their constitutionally limited authorities. And the only way courts can serve that function is if judges are engaged--if they pay close attention to the real facts of cases before them and close attention to the Constitution. Judges who don't do these things can't, in any meaningful sense, really be said to be "judging."

People who think the Constitution (which grants Congress the power to "regulate commerce . . . among the several states") gives Congress the power to require every individual American to purchase health insurance should make that argument. And people who think we should amend the Constitution to give Congress more power should make that argument as well. But we should not allow people armed with slogans about "judicial activism" to deprive us of meaningful judicial engagement in pursuit of their short-term policy goals. Left without the protection of courts, the only thing we have protecting us from overreaching government is the self-restraint of public officials. And experience shows that is no restraint at all.