Judicial Review and Liberty

And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

Citizens of the United States, and the world for that matter, await the Supreme Court's decision on the legality of Obamacare--particularly as it relates to the mandate that individuals must purchase health insurance. The High Court's decision is expected tomorrow.

I am certainly hopeful that the Court strikes down as much of Obamacare as possible.

Regardless of the direction of tomorrow's ruling, however, let me be clear that employing the majority opinion of nine tenured-for-life lawyers to dictate legality is not the basis for the rule of law. It is the basis for discretionary rule by men.

We know this is how the current system works because of the political influence gained by being able to appoint justices to the bench. Judges are appointed who are perceived to be of like mind to the political party that controls the appointment. When a different regime takes control, then it proceeds to appoint judges biased toward other interests.

This is discretionary rule. Discretionary rule was what the Framers sought to avoid.

The rationale behind the Supreme Court's authority is 'judicial review.' Judicial review is not a power granted by the Constitution. Instead it was a power granted to the Supreme Court by, yep, the Court itself in the early 1800s.

If the Framers thought that the Supreme Court should rule on the constitutionality of laws, then they would have surely enumerated this power into Article Three of the Constitution. However, the Framers knew that actions of judges can be politically motivated, and authorizing a federal court to render judgment on the rightness of law would almost certainly deliver power into the hands of the bench and those who decide who sits on the bench.

Interestingly, many Antifederalist arguments were grounded in the thesis that the Constitution as written would permit interested judges to populate the federal bench, which over time would compromise liberty.

The Antifeds were right.