In a debate on another blog (the Spokesman-Review’s “Matter of Opinion” blog), one commenter wrote,
“No amount of Libertarian Ayn Randian rhetoric about the long defeated concept of “enumerated powers” as why this country can’t have universal health care is going to convince any intelligent citizens.”
I asked how the doctrine of enumerated powers had been “defeated,” to which he responded,
“By SCOTUS ruling. Step into the current century, Luddite.”
Well, it’s not terribly clear what “defeating” a constitutional provision requires, or whether the Supreme Court has a power to “defeat” any of them, given that word is not mentioned in the Constitution. But per common understanding, to “defeat” someone or something implies rendering that thing or person inoperative or impotent. The US Constitution does provide a means for achieving that result with respect to its various provisions — the amendment process. Of course, there has been no amendment repealing the enumerated powers doctrine. But this poster clearly thinks the Supreme Court is empowered to repeal it on its own.
So I asked him which other provisions of the Constitution he believed the Court possessed a power to “defeat.” I posed the following fictional ruling for his (and your) consideration. Comments are welcome.
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The petitioners in the present case are charged with violations of the Defense of Democracy and Orderly Debate Act of 2012 (DDODA), by distributing leaflets, posting essays and comments on various Internet sites, and organizing rallies in opposition to the Human Rights Enforcement Act (HREA) then under deliberation in Congress. Defendants moved the trial court to dismiss the charges on grounds that the First Amendment protects their right to free speech and peaceable assembly. That court denied the motion; the 9th Circuit Court of Appeals upheld the denial.
The Defense of Democracy and Orderly Debate Act attempts to ensure that public debate of enacted or proposed legislation proceeds in an orderly, civil manner, and does not thwart or hamper the ability of the government to enact or enforce legislation which it has reason to believe reflects the will of the public. The government contends that the actions of the petitioners complained of in the indictment provoked public opposition to the HREA and to the government generally, interfered with Congressional consideration of the bill and delayed action thereon, and has inspired widespread defiance of several of the Act’s provisions since its passage. As authorized by the DDODA, the government issued cease-and-desist orders to the defendants herein and to several other persons, ordering them to halt distribution of the the objectionable leaflets, remove specific postings from various Internet servers, and barred them from gathering in groups larger than two persons “for the purpose of inciting public sentiment hostile to the bills herein referenced.” The orders also advised the recipients that continued violations of DDODA would result in fines of $5000, or imprisonment for 5 years, or both, for each specific count in violation. While many of the enjoinees complied with those orders, the petitioners publicly refused, and per their own admission not only continued but “redoubled” their violations of the order.