Anyone who’s had a casual conversation with his neighbors or is cognizant of reality TV should already be petrified of democracy.
But if the Supreme Court — or, as Barack Obama likes to refer to them, an “unelected group of people” — overturns Obamacare’s individual mandate, the president says that the court would be taking “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
To begin with, as usual, much of Obama’s rhetoric isn’t exactly accurate. A “strong” majority did not support Obamacare. (Parliamentary maneuvering in a Democratic Congress was needed to pass it.) It would be neither unprecedented (unless you count the way it was passed) nor extraordinary to overturn parts of a federal law. (The Supreme Court has done it many times.) And a court that restrains democracy is not an activist court as Obama implies, but typically one that’s just doing its job.
But though most of the criticism of Obama has pointed out that the president has issued a “warning” or an “attack” on the judicial branch — and, let’s be honest, all people do it when it suits them — it is his misguided case for democracy that should worry us most. Because, believe it or not, a small unelected group upholding individual liberty is a huge improvement over the opposite.
Alexander Hamilton argued that the court protects (or should protect) the deeper will of the people, because the Constitution represents our overarching values. Newly instituted laws, on the other hand, could often reflect fleeting emotions, lack of knowledge or flawed politicians.
Hamilton also claimed that federal courts would be the “least dangerous branch.” In this he was surely wrong. Even if the individual mandate is struck down by the Supreme Court this summer (and it seems to me that there is some premature celebration on the right), you might want to remember this: The court is a single judge away from only occasionally caring about enumerated powers or ignoring them altogether.
Take a nugget from Justice Elena Kagan, who, as solicitor general of the United States, argued that banning books would be acceptable if those books were considered politicking by a government agency. During the Obamacare arguments, she said that “the federal government is here saying, ‘We are giving you a boatload of money.’ There’s no matching funds requirement; there are no extraneous conditions attached to it. It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
A boatload of government money is indeed a gift. Unless, I suppose, you’re one of the saps paying for the cargo. But people like it! More than 50 percent maybe. Now, that’s not to say taxation is unconstitutional, but it is to say this justice can’t even comprehend how forcing even one individual to buy something might be problematic. And I can assure you that if Americans were asked to vote to get boatloads of money from government, democracy would quickly become a lot more expensive.
Democrats have fought hard to undo safeguards against direct democracy, attaching a morality to a process that can do both good and bad. They have created ballot measures to do away with the Electoral College. They’d like Washington, rather than localities, to dictate nearly everything. The mere mention of states’ rights puts you in league with the Ku Klux Klan.
Why not? Democracy allows rhetoric, false empathy and emotion to pummel rational thinking — so it’s no wonder so many politicians thrive in it. The Supreme Court, however, should rise above democracy, not give in to it. That’s the point.