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As the U.S. Supreme Court deliberates on the Obama health law, the court itself is on trial. Obamacare supporters are attacking the justices as hacks dressed up in black robes, calling for limits on their life tenure and claiming judicial review is undemocratic.
Worse, President Obama and his secretary of health and human services, Kathleen Sebelius, are shoveling money into implementing the law as fast as possible and refuse to discuss an alternative. Its irresponsible. Whats needed now is not court-bashing, but contingency planning.
The Obama administration and allies in Congress have nine weeks to plan how to pick up the pieces on a vast array of health insurance issues. Its the presidents duty to have a plan. It will signal his respect for the nations system of checks and balances something he has utterly failed to show.
He should take a page from history. When the national government was only a decade old, the Supreme Court came under similar attack. But how it was handled ensured the survival of our system of checks and balances. The stakes may be that high now.
Nearly all the framers of the Constitution agreed that federal judges would be obligated to strike down any act of Congress that violated the Constitution. Only four of the 55 delegates at the Constitutional Convention in 1787 questioned whether judicial review was desirable. During the ratification debate, critics with pen names such as Brutus and Federal Farmer raised the danger that judges might strike down laws offensive to their own personal views. In response, Alexander Hamilton assured them in The Federalist that judges were tied to one standard: the written Constitution.
When the first Congress met in 1789, Rep. James Madison implored the House of Representatives to enact a Bill of Rights. Such rights as trial by jury and freedom of assembly had long histories already, and some congressmen said it was unnecessary to write them down. But Madison said adding them as amendments to the written Constitution would mean judges would be obligated to protect them against majorities in Congress. Judges already were expected to exercise judicial review, just as they are today.
Judicial review occasioned little controversy until 1798, when the fledgling nation broke into two hostile political parties: the Federalists and the Republicans. Most judges were Federalists and seen as partisan, and trust in the judiciary plummeted.
In 1800, Thomas Jefferson and Republican allies swept into office, intent on attacking the court. They called judicial review a new power of a dangerous and uncontrollable nature. The federal judiciary was on trial, as it is today. Chief Justice John Marshall saw it was urgent to rescue the nations checks and balances.
In his now famous ruling in Marbury v. Madison (1803), Marshall began with the philosophy expressed in the Declaration of Independence, that the people have an original right to establish their own form of government and define and limit its powers. And that those limits may not be mistaken, or forgotten, the constitution is written, Marshall continued. Certainly all those who have formed written constitutions contemplate them as forming the fundamental and paramount law of the nation ... and consequently any act of government contrary to that paramount law is void.
Marshall didnt invent judicial review. But his cautious definition of the review power assured a nation newly fearful of judicial discretion that he and his fellow justices would enforce the written Constitution but go no further. Judges would not strike down laws that conflicted with their private views.
Marshalls prudent strategy to rescue a court on trial needs to be repeated now. The justices must tie their ruling on the Obama health law to the written Constitution and avoid discussions of policy. Policy is not their job. The president needs to signal to the nation that he is prepared to comply with the Supreme Court. And Congress must be ready with alternatives. Theres no time to waste.