Judicial Activism and the Death of the Auto Industry: Part Four

Previous Installments:

Part One (“interstate commerce”)

Part Two (The New Deal)

Part Three (the Civil Rights Movement)

Today, we are witnessing a federal government more massive than most of us ever imagined possible. Most of us were outraged over the corporate bailouts.  We wondered how they were approved so quickly, with no one questioning the legality of the move.  Once private banks are now under increasing control from the government.  The auto industry has crumbled. Our president and his staff have mediated bankruptcy disputes, had a CEO fired, selected which dealerships to shut down, and are now trying to design the products for car-makers to produce.  How can this be?   Where did this authority come from?  More importantly, how and when will it stop?

Throughout this series we have examined the federal government’s abuses of both the Commerce Clause and the Necessary and Proper Clause.  In each case the Supreme Court failed to stop power-hungry law makers.   Whether it was due to a poorly written opinion or the Justices’ desire to overlook the Constitution in the name of  promoting “fairness,” these perversions of congressional power came from the courts. Often, these decisions were made against the back-drop of difficult times (the Great Depression, the Civil Rights Movement, etc).  Understandably, members of the court wished to help the down trodden. Instead of forcing our representatives to come up with creative and legal solutions, the Justices put aside the very constitutional principles that they were charged with protecting.  As a result, lawmakers were given a backdoor to almost limitless power.  Not only were they given the authority to interfere with all forms of industry, they were allowed to move forward with social policies under these same protections.

By the 1970′s, the Commerce Clause was used as a dumping ground, of sorts, for any bill which was constitutionally questionable.  These policies were no longer limited to legislation of a fiscal nature.  Just about any activity could be considered to have an effect on commerce in some tangential way. In fact, making an argument that a particular bill was related to interstate commerce, became not so much a requirement for passage, as an exercise in formality.  After such an expansion in federal authority, the Necessary and Proper Clause (congress has the power to make all laws which are necessary and proper to carry out federal powers) took on a whole new meaning.  If Congress had the power to regulate just about anything, then just about any law was “necessary and proper” to execute this authority.

Along the way, many justices attempted to slow or stop the expansion of federal power.  In fact, most of the men and women who have held this position, fought hard to defend the Constitution. …But it only took a few to destroy a large portion of what our founders gave us.  The Justices may have had good intentions, but they made an increasingly common mistake.  They placed their own values above the Constitution.

Members of the Supreme Court hold a tremendous amount of power, with few restrictions.  They alone, have the authority to decide which laws will stand and which must fall. Their power goes beyond that of individual states, Congress, or even the President.  When our elected officials betray us, we can vote them out of office.  We can refuse to donate towards their campaign.  We have no such recourse against our judicial branch.   This is why we must urge our representatives to appoint only the best to this high office. We must demand that these men and women demonstrate an exceptional grasp of constitutional principles and a tireless devotion to defending them.  We cannot place the well-being of our nation at the mercy of the ever changing whims of men.  There must be an objective standard.  That standard is the Constitution.  The belief that this is a “living document” or that it is open to broad interpretation is a dangerous one.  The very structure of our society hinges on the assumption that the founding documents will be upheld. Every time we take a small step away from the principle of limited government, upon which we were founded , we take a step into further social and economic chaos.

Today the broad authority of our federal officials looks nothing like the prudently limited power they were given in the Constitution.  “We the people” no longer grant them authority; they take just take it.  Most Americans aren’t even sure what the government’s job is anymore.  Our, once clearly structured, system of government has become formless and malleable.  It’s hard to tell where the authority of the individual, the states, and the national government begin and end.  If we really want to take back the freedoms we’ve lost, or just keep the ones we still have we need a strong judicial system.  We need our Supreme Court to say, “No, you can’t decide who the banks loan money to.” “No, you can’t fire employees of private businesses.” “No, you can’t tell the auto industry what kind of cars to make.”

There are a lot of big issues right around the corner.  Cap-and-Trade, universal healthcare, and tax hikes will continue to spark debate over the coming months.  We need to know, at the end of the day, that the members of the Supreme Court will defend our rights as individuals and keep the power-hungry lawmakers in check. They must be able to truly put “reason before passion.”  It is almost impossible for most of us to make decisions based entirely on objectivity and not our personal biases, but that is what this job requires. We cannot afford to place someone who is only an adequate legal mind in this position.  The candidate must be exceptional.  It is a lot to expect from someone, but it is necessary.  This job is too important, and whether we are talking about Sonia Sotomayor or the next nominee, we must be sure that he/she is up to the task.