This is the Cator Daily Podcast for Thursday, May 6, 2010. I'm Caleb Brown.

Obamacare is unconstitutional and how the president defends that law should be front and center when the Senate debates his nominee for the Supreme Court.

So says Utah Senator Orrin Hatch, he spoke at the Cato Institute yesterday.

Kato had an uncanny sense of timing for this forum which occurs between two significant

events that bring the Constitution to everyone's attention.

The first event was President Obama signing into law the health insurance reform legislation,

and the second is his imminent announcement of a

nominee to replace Supreme Court Justice John Paul Stevens. Each of these

requires that we debate what the Constitution really is, and whether the Constitution controls

the government or vice versa.

Roger will address in more detail how Congress ignored the constitutional limits on the legislative branch in passing

the new health insurance reform bill. I want to offer some thoughts on how the

Constitution's limits on the judicial branch must be central to the process of filling the upcoming

Supreme Court vacancy.

Let me start with some basic principles drawn from the time of America's founding. In the Federalist Number 78, Alexander

Hamilton wrote that no position is based on clear principles than that

legislation contrary to the Constitution is invalid and

that it is the duty of the courts to say so.

Thomas Jefferson wrote in a letter to Wilson Nicholas that our written Constitution can protect liberty so long as

courts do not turn it into a blank page by construction.

And in Marbury versus Madison, Chief Justice John Marshall, the seminal case of all constitutional law, Chief Justice

John Marshall wrote that the Constitution is intended to control the courts as well

...