|Betsy McCaughey; Betsy McCaughey, Op-Ed Contributor|
The Obama administration and allies in
He should take a page from history. When the national government was only a decade old, the
Nearly all the framers of the Constitution agreed that federal judges would be obligated to strike down any act of
When the first
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 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