That’s the title of my latest op‐ed on the ObamaCare ruling. Here’s an excerpt:
The Supreme Court’s health‐care ruling displayed an unfortunate convergence of two unholy strains of constitutional jurisprudence: liberal activism and conservative pacifism.
Liberal activism, typified by the four Democratic‐appointed justices, finds in the Constitution no judicially administrable limits on federal power. Conservative pacifism, a knee‐jerk reaction to the liberal activism of the 1960s and ‘70s, argues that we must defer to Congress as much as possible, presuming its legislation to be constitutional.
Neither approach considers that the Constitution’s structural provisions — federalism, separation and enumeration of powers, checks and balances — aren’t just a dry exercise in political theory, but a means to protect individual liberty against the concentrated power of popular majorities.
Read the whole thing.