Justice Roberts steps up
June 28, 2012 Leave a comment
Courts are and should be loathe to take up legislation. They aren’t particularly suited to it and it adds to the workload.
I especially like that the essence of the financial penalty for those that did not buy was a tax, regardless of how it might be characterized.
Judges should be looking at substance, not semantics. They shouldn’t be stretching for an interpretation according to which legislation should fail. Legislation should not be struck down on word choice that does not affect substance. Legislation shouldn’t be a game of “Simon says”.
Obama didn’t spring the health care changes as a surprise, he campaigned on it and it’s part of his mandate. So if people don’t like it they can go seek their own mandate to change it. That’s how it’s done.
Whether the arrangement is just or not, I would have to do a lot more study and probably have to see how it was implemented to see if the legislation operated justly or not.
But constitutions are not designed to remedy all injustice, nor should they be. There has to be broad scope for legislative branches to act in the public interest without involving the constitution, and on those occasions when a law turns out not to be in the public interest, that should not necessarily turn the issue into a constitutional issue.
For an illustration of this issue, here is paragraph 1 from Canada’s charter of rights:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
What people sometimes don’t understand is that the real meaning of this paragraph is that the government can enact laws which are demonstrably unjustifiable in a free and democratic society, provided that none of the enumerated rights are violated. Everything else constitutionally is fair game.
While I don’t think that the Canadian charter goes nearly far enough to protect rights, it is what it is. And it isn’t what it isn’t.
The American constitution is a bit more complicated but the same idea holds true. It is what it is and it isn’t what it isn’t. That something which arguably ought to be protected isn’t, is irrelevent. It isn’t designed to be a panacea, a means to rid the country of everything that is arguably disagreeable. Even if a policy is clearly wrong, if it is only wrong, that should not open the door to judges becoming legislators.
I was skeptical when Roberts was first appointed and cringed when he was vaulted almost immediately to chief justice but he is showing in retrospect that he was in fact an appropriate choice, able to put his presumed political views to the side.