Tuesday, April 03, 2012

Tyranny of the Majority

David Harsanyi is now scribbling for Human Events and his first work under that banner is called Obama and the mother of all tyrannies:

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.

That is a sobering thought indeed. And one that reinforces the importance of this year's race for president however uninspired we may be by the candidates.