• Tokyo


The constitutionality of the “individual mandate” at the center of U.S. President Barack Obama’s health care plan may be a close question, but what is far more clear is professor Yoshi Tsurumi’s complete misunderstanding of the role of the U.S. Supreme Court in giving voice to the Constitution’s checks and balances on unbridled government power.

The very title of his April 16 article, “Supreme Court is destroying U.S. democracy,” gives due notice that the piece will be a bit over the top. He ridicules Justice Antonin Scalia’s question about whether the federal government — if it can require people to buy health insurance — can also force them to buy broccoli.

First, Tsurumi says that, unlike not buying health insurance, not buying broccoli cannot harm broccoli eaters. Second, if Congress passed a broccoli requirement, surely the “reason and humanity of the Supreme Court” would strike it down.

The first answer shows Tsurumi doesn’t understand Scalia’s point. Not eating broccoli indeed MIGHT impose costs on broccoli eaters, particularly if Congress found that eating broccoli improved health and thus reduced the health care burden placed by nonbroccoli eaters on others. Scalia’s question, while perhaps tongue in cheek, is doing exactly what Supreme Court justices are supposed to do: probe the consequences of adopting a constitutional principle.

In this case, if we accept the vast expanse of federal power that would follow the government’s argument, what is the limit?

Tsurumi’s second answer shows how little he understands the basis of judicial review. Laws passed by Congress, or the states, are not to be struck down because forcing someone to buy broccoli offends some justice’s “sense of humanity,” but rather because they are inconsistent with the Constitution.

In this case, there is an important constitutional limitation on the federal government’s power, one that has been a cornerstone of our national structure since its founding. Just like the Constitution’s enumeration of rights retained by the people in the Bill of Rights and its separation of powers among the federal branches of government, the division of powers between the federal government and the states is an important check on unlimited power by one part of government, and was thus understood by the framers of the Constitution as a bulwark of individual rights.

Tsurumi is wildly off the mark in calling the respect for such a balance of power a “dictatorial tyranny of a prejudiced judiciary over a democratic Congress and president.”

The opinions expressed in this letter to the editor are the writer’s own and do not necessarily reflect the policies of The Japan Times.

thomas clark

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