A new Rasmussen poll of likely voters shows that 74 percent of independents reject President Obama’s contention that (in the question’s wording) “the federal government [has] the constitutional authority to force everyone to buy health insurance.” Only 18 percent concur with Obama’s reading of the Constitution. This 56-point margin among independents is a bit larger than the margin among all respondents, who reject Obama’s position by a margin of 48 percentage points (69 to 21 percent).
And yet the Supreme Court may very well not concur with the American people. A Court that includes two Obama appointees (one of whom shouldn’t be hearing the case at all, the other of whom has said that she decides cases partly on the basis of how much empathy she feels toward the parties) and two Clinton appointees (one of whom construes the Commerce Clause about as broadly as any judge in America, the other of whom doesn’t view herself to be particularly bound by the constitutional text and has been known to decide domestic cases on the basis of foreign law) may well disagree with these independents’ rightful conclusion.
So what should such private citizens do in that event? They should respond as Lincoln would have responded — and as he did respond (to Dred Scott), in his wonderful first inaugural address:
“I do not forget the position, assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
In other words, the people, not the Court, will likely be the ones ultimately to decide this issue — in the voting booth.