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December 2, 2014

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Dec. 5, 2010 / 28 Kislev, 5771

The case for engaged justices

By George Will



http://www.JewishWorldReview.com | "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."

- Marbury v. Madison (1803)

Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators?

A case destined for the Supreme Court concerns the health-care law. The Constitution establishes a government of limited and enumerated powers. Which one empowers Congress to force individuals to purchase health insurance and to punish those who do not?

Supporters of the mandate answer: the power to regulate interstate commerce. Opponents reply: Unless that power is infinitely elastic, it does not authorize Congress to forbid the inactivity of not purchasing a product from a private company. If the power is infinitely elastic, Congress can do anything - eat your broccoli, or else - and America no longer has a limited government.

Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution's prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature's judgment that its police power - its general authority to protect the public welfare - trumped the constitutional ban on retroactive legislation?

The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate.


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Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett's words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?

Willett says: In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."

What Willett says of the states' police power is applicable to Congress's power under the commerce clause: "When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction." And: "If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable."

The judiciary's role as referee of constitutional disputes is, Willett says, "confined yet consequential." But, "If judicial review means anything, it is that judicial restraint does not allow everything." And there can come a "constitutional tipping point" where, by excessive deference to a legislature in the face of a constitutional limitation, "adjudication more resembles abdication." Then a state's police power (or Congress's power under the commerce clause) can "extinguish constitutional liberties with nonchalance."

Like the U.S. Constitution, the Texas Constitution, Willett notes, is "irrefutably framed in proscription." It "declares an emphatic 'no' to myriad government undertakings," no matter how much a majority might desire them. So does the U.S. Constitution, as in the first words of the Bill of Rights: "Congress shall make no law . . ."

Judicial review, he writes, sometimes means preventing today's majority from overturning yesterday's supermajority - "the one that ratified our solemn Constitution."

Hence the idea that federal judges are accountable to no current constituency. When construing the Constitution, however, they are duty-bound to be faithful to the constituency of those who framed and ratified it.

"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

George Will's latest book is "With a Happy Eye but: America and the World, 1997-2002" to purchase a copy, click here. Comment on this column by clicking here.

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