I have said that the 1973 Supreme Court decision in Roe v. Wade was our generation’s Dred Scott case, and I still believe it is analogous from its position as the seminal event in the culture war that has persisted since. Now we have a decision that I believe, upon final Supreme Court appeal, may be close to its equal in the public conscience as a bellwether in constitutional originalism. When a Federal Judge quotes Federalist 51, the landmark argument by James Madison in the constitutional debate for a limited government of enumerated powers, in overturning the government overreach of the Obama health care law and rejects the use of the commerce clause as well as the “necessary and proper” clause in its defense, one can be sure that we are headed for a constitutional confrontation of real significance.
Lest one dismiss this as hyperbole, listen to Chief Justice Marshall in Marbury v. Madison (1803): “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.”
As the Wall Street Journal has noted, Judge Vinson has initiated a profound “constitutional moment” and introduced the Obama administration to both Madison and Marshall, much to the disdain of the liberal political establishment, which has dismissed earlier Republican gestures to the Constitution and its validation of proposed legislation as trifling symbolism. This will no longer be possible. In case the real meaning of the November election result was lost on them, this decision and its impact should help clarify it.