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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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Cognitive Enhancement and Political Equality

Over the next several decades, it is possible that genetic engineering and other cognitive enhancements could significantly increase human intelligence. However, as Ronald Bailey points out, critics on both the right and the left worry that this will undermine political equality:

[N]eoconservatives fear biotechnology’s implications for human equality. In his 2002 book Our Posthuman Future: Consequences of the Biotechnology Revolution, for example, Francis Fukuyama asserted, “The political equality enshrined in the Declaration of Independence rests on the empirical fact of natural human equality.”

This concern about human equality is the basis for a strange-bedfellow alliance with left-wing critics of biotechnological progress such as Marcy Darnovsky, co-founder of the Center for Genetics and Society. “The techno-eugenic vision urges us, in case we still harbor vague dreams of human equality and solidarity, to get over them,” wrote Darnovsky and environmental activist Tom Athanasiou in World Watch magazine back in July 2002. The two fear that advances in biotechnology will “allow inequality to be inscribed in the human genome.”

This is a very weak reason to oppose biotechnological enhancement of intelligence. Cognitive inequality is already “inscribed in the human genome.” There is a huge difference in intellectual ability between a person with an IQ of 150 and one with an IQ of 75. And there are already massive differences in political knowledge between different individuals and groups (many of them not caused by genetics), some of which I discuss in this article. Political theorists such as John Stuart Mill argued that these differences justify giving the more knowledgeable extra voting power long before anyone ever heard of genetic engineering.

If the case for political equality can be sustained at all, it must be on the basis that people qualify for it by meeting a certain minimum threshold of cognitive ability, not on [...]

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