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USA Today/ - News, Seg, 02 de Abril de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Column: Why Justice Kennedy should
rule 'no'
Justice Anthony Kennedy is, in a sense, the king of the
United States of America. As the deciding vote on the
U.S. Supreme Court in dozens of important cases
where the liberals and conservatives are evenly
divided, he has become, in effect, a jurisprudential
monarch (hence columnist Mark Steyn's nickname for
him, "the Sultan of Swing"). He has been the final word
on everything from the 2000 Bush-Gore presidential
election to partial-birth abortion and terrorist detention.
And now he will, in all likelihood, decide the
constitutionality of the Patient Protection and
Affordable Care Act— aka ObamaCare.
Whether it is good news for America that one man has
so much power is a conversation for another day. The
pressing question is whether Kennedy's role as judicial
Solomon is good news for supporters of ObamaCare
or its critics. And the short answer is: Nobody knows.
Justice Kennedy is famous — infamous? — for
dramatically changing his mind at the last moment.
He's also renowned for basing his decisions in
grandiose moral theories in the hope of imposing a
national consensus where it doesn't exist. As legal
scholar Jeffrey Rosen put it in a lengthy 2007 profile
for TheNew Republic, "In Kennedy's mind, the messy
realities behind real laws must yield to his idealizing
moral abstractions."
Evidence of his method
The most notorious example of the Kennedy method
came in the 1992 Planned Parenthood v. Casey
decision in which he ruled to uphold Roe v. Wade. In a
section famously derided by his fellow Justice Antonin
Scalia as the "sweet-mystery-of-life passage,"
Kennedy wrote:
"These matters, involving the most intimate and
personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are
central to the liberty protected by the 14th Amendment.
At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and
of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood
were they formed under compulsion of the state."
Kennedy's detractors on the right think this is so much
gobbledygook. But let's assume it does mean
something to at least one very important person:
Kennedy. And if that's the case, then opponents of the
health reform law — like me — have good reason to
hope he will overturn it. During last week's marathon
hearings, Justice Kennedy asked Solicitor General
Donald Verrilli, "When you are changing the relation of
the individual to the government in this … unique way,
do you not have a heavy burden of justification to show
authorization under the Constitution?" By using the
commerce clause to, in effect, force citizens into a
contract, ObamaCare is setting a precedent whereby
the federal government can compel citizens to do
almost anything. For all the talk about making citizens
eat broccoli, the fact is that the government couldn't
offer any valid "limiting principle" to what the state can
do through the commerce clause.
Federal vs. state
Moreover, as Kennedy himself has written, our federal
system whereby people live under two distinct
governments — state and federal — is a bulwark of
liberty. "The Framers concluded," Kennedy observed
last year in Bond v. United States, "that allocation of
powers between the national government and the
states enhances freedom, first by protecting the
integrity of the governments themselves, and second
by protecting the people, from whom all governmental
powers are derived." The world ObamaCare ushers in
bulldozes distinctions between federal and state
government.
But that's a prosaic concern compared with the larger
metaphysical issues at stake.
The recent brouhaha over religious liberty and birth
control is just a foretaste of the bitter pills to come
once the government is granted unprecedented
influence over the most personal transactions in life,
and when the chief concerns of bureaucrats will be to
preserve the health and solvency of "the system"
rather than the health or sovereignty of the individual.
Simply put, a country fully under the heel of
ObamaCare is a country where the state has too much
say in how people define personhood and the meaning
of life. By forcing people to buy health insurance, by
giving unelected boards and bureaucrats
unaccountable power over our lives, and not
inconceivably our deaths, ObamaCare violates the
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