Sobering Truth from Mark Steyn

Mark Steyn: "If the Commerce Clause can legitimize the 'individual mandate,' then there is no republic, not in any meaningful sense."

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In other words, if individual mandates imposed by the federal government are upheld by the Court, then the federal structure of U.S. government is functionally meaningless. The result will be the complete eradication of the spheres of autonomy "reserved to the states...or to the people" by the Constitution. The 10th Amendment will finally be reduced to a nullity and State governments will effectively become like the English monarchy - vestiges of a bygone era, comforting to the public but largely irrelevant to actual governance.

This is why Conservatives are more than a little irritated with the recently passed health-care bill. Because all the "crazy, right-wing scare tactics" claiming that Obamacare will fundamentally alter the role of government in American life will be proved absolutely, undeniably correct. That is, unless the Court steps in to prevent it.

Some analysts are fairly confident that could happen, but I'm predicting a 5-4 decision in favor of Obamacare - because the Court has the most to gain from passage of the bill. If the Court decides that the Commerce Clause can validate federal mandates, guess who gets to decide which mandates in particular are constitutional and which are not. That's right. The Court itself becomes the sole arbiter of social change, unrestrained by objective constitutional standards.

But this all sounds pretty cynical, right? Aren't judges checked by certain institutional limitations? Stare decisis and so forth? Surely our legal system (and, like, the text of the Constitution) would prevent them from redefining the limits of federal power willy-nilly?

I have my doubts.

First, Commerce Clause jurisprudence is the "wild, wild west" of stare decisis application. There is no objective test for activities that affect interstate commerce - the Court has free reign to decide, restrained only by their conscience and their imagination (see Wickard vs. Filburn). And secondly: many of the Justices, in spite of their exclusively legal training, consider themselves to be intellectuals. And intellectuals can't resist the urge to be in the vanguard for social experimentation. It makes them feel special, and like all professional intellectuals they pay a minimal price for being wrong.