The case for engaged justices

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.”
~ Marbury v. Madison (1803)

George Will
Washington Post
12/5/2010

Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators?

A case destined for the Supreme Court concerns the health-care law. The Constitution establishes a government of limited and enumerated powers. Which one empowers Congress to force individuals to purchase health insurance and to punish those who do not?…

…Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution’s prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature’s judgment that its police power – its general authority to protect the public welfare – trumped the constitutional ban on retroactive legislation?

The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate…

…”There is,” Willett explains, “a profound difference between an activist judge and anengaged judge.” The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means…

Read the entire article at the Washington Post.

Related: Texan calls for jail time for enforcing Obamacare

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