June 28, 2012

Obamacare dissent, an ode to the Constitution

By Obamacare dissent, an ode to the Constitution

Today’s dissenters from the Court’s Obamacare decision wax poetically about political philosophy—in particular, about the importance of our constitutional structure of government to the preservation of individual liberty.  In the last substantive paragraph of their dissent, Justices Scalia, Kennedy, Thomas, and Alito conclude:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times.  The constitutional protections that this case involves are protections of structure.  Structural protections—notably the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments.  Hence they tend to be undervalued or even forgotten by our citizens.  It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment.  The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.  Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disgregarded it.

With Independence Day just days away, we should contemplate the wisdom of these words.  We ultimately get the legislation—and judicial decisions—that we deserve.  If We the People who elect our representatives—who, in turn, appoint our federal judges—are not ourselves mindful of the protections and rights enshrined in our Constitution, can we really be too surprised by Obamacare’s passage or the decision today that upheld it?

UPDATE: I originally stated that Justice Scalia was the author of the dissenting opinion; however, the dissent issued without attribution, and I’ve corrected this post to reflect that fact.

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