February 17, 2011- The Supreme Court and Judicial Activism

Wisconsin Attorney General J.B. Van Hollen may have created a new gold standard for constitutional ignorance. The recent decision by a Florida federal judge to strike down the whole of the new federal health care law, a decision at odds with two other rulings, prompted Van Hollen to declare that “effectively, Wisconsin was relieved of any obligations or duties that were created” under terms of the law. Even the judge stayed his ruling pending appeal.

Van Hollen’s statement takes one’s breath away, and puts him in the ashcan with South Carolina and other states that have ventured various forms of interposition. That civil war ended nearly 150 years ago—or so we thought. Van Hollen quickly retreated, saying he had not advised the governor to halt implementation in Wisconsin. (After recently assuming office, the governor rejected millions of federal dollars for a proposed Midwest high-speed rail system. He wanted the money instead for road builders, who lavishly supported him. The Obama administration rejected his demand, wisely, as he had good reason to know it would.)
The expansive, nationalist interpretation of the U.S. Constitution’s commerce clause is not a New Deal phenomenon; instead, it originated at the very dawn of constitutional interpretation in the early 19th century. Yet the Florida decision boldly rejected nearly two centuries of Supreme Court rulings upholding a broad sweep of congressional power under the national legislature’s authority to regulate commerce among the states. Judge Roger Vinson’s ruling might best be remembered as a new benchmark for judicial activism.

Such are the times—not too different from the past, but just more heated—that constitutional clashes are inevitable. The framers of the Constitution themselves did not foreclose future debates. Their words sometimes were vague, laying a foundation for a later variety of views, but after all, it is not a statute but a constitution we expound, as the first great Chief Justice John Marshall eloquently stated, and one intended “to endure for ages to come.”

Vague? Of course. The Constitution provides that Congress may pass all laws “necessary and proper” to carry out its powers; it may “tax and spend for the general welfare”; and it may “regulate commerce among the several states.” What does it all mean? When? In 1787? 1887? 1954? Only Robert Bork and his Ouija board can divine certainty in the framers’ intentions. (To see an outline of “originalism” and of Bork’s view on the matter, click here.) James Madison, who later became the nation’s fourth president, undoubtedly would stagger with wonderment at the 21st century’s (and 19th and 20th, too) construction of Article 2 and presidential powers.



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