Constitution vs Obamacare

[sirs]

Court challenges to the constitutionality of Obamacare have exposed the broader agenda of those who are committed to the permanent expansion of government power which that legislation represents. The specific legal issues are almost irrelevant because Obamacare is so clearly outside the scope of limited, constitutional government. This has made it necessary for the advocates of unrestrained government power to attack either the Constitution itself or the very concept of constitutional limits on the tyranny of the majority or of a ruthless minority elite.

Some try to sidestep the attack on the Constitution by substituting a war on English. They claim to support the Constitution but deny that words have any objective meaning. Supposedly we do not know and cannot know what the writers of the Constitution, or even of recent amendments, intended to say. Everything is a matter of interpretation, and the words mean whatever anyone wants them to mean. Of course, that is arbitrary, and unless we abandon reason and reality completely, the Constitution cannot mean thousands of mutually exclusive things.

Therefore, in practice, the words mean whatever those in power decree that they mean, destroying any limits on their power.  (can't help but notice how closely that assessment resembled a recent quote here in the saloon "As has always been the case, whomever interprets the Commerce Clause decides the constitutionality of the mandate." )

Those who are less nihilistic attack the Constitution as evil or, at least, irrelevant. One way of doing this is to attack the intellect or character of those who wrote it. Their Constitution was just their opinion, so we should submit ourselves to the intellectual and moral giants in office today.

Another method is to take statements in the Constitution out of the context of the rest of the document. The most frequent example of this is the use of a goal in the preamble: to promote the general welfare. Politicians have used this to maintain that any idea which they claim promotes the general welfare is constitutional even if it exceeds the enumerated powers of the Constitution. Of course, even if the preamble did trump the entire Constitution, it still would be subject to the amendments, which began with the Bill of Rights.

But the Bill of Rights is dispensed with when someone claims to discover a new right which the Constitution does not mention. Thus an invented "right to health care" is used to destroy the right to free speech and press, because expressed opposition to such an absurdity or to any government policy is labeled "hate" speech or "terrorism" that should be banned. And those who do not buy health insurance face a penalty without trial, or a tax on nothing.

The interstate commerce clause, which intended only to prevent trade barriers and taxes between states, is ignored when states forbid the purchase of insurance across state lines but used by the federal government to control noneconomic activity and even nonactivity.

Some claim technological change means we should ignore the Constitution.

Because it did not anticipate television, computers and airplanes, we should throw it out. But change existed in the 18th century, too, which is a reason the writers provided for a deliberate and considered amendment process.

Some say that parts of the Constitution are immoral, invalidating all of it.

One example is that the writers needed to take into account the reality of slavery when the document was written. This ignores the fact that the document led to the creation of a society and economy in which slavery could not, and did not, long survive. Improvements to the Constitution resulted ? by the constitutional means the writers provided.

Thus we see why, if Obamacare stays, the Constitution must go. That is why those committed to maximum government wage war on it with such contempt.

Commentary

[sirs]

The "Judicial Activism" Ploy

Now that two different federal courts have declared ObamaCare unconstitutional, the administration's answer is to call the courts guilty of "judicial activism."

Barack Obama has a rhetorical solution for every problem. Remember the repeated claims of "shovel-ready" projects that needed only federal stimulus money to get started? Last year the President quietly admitted that there were not many "shovel-ready" projects, after all.

But the phrase served its political purpose at the time-- and that was obviously all that mattered. Now, in the wake of rulings by two different courts that ObamaCare is unconstitutional, rhetoric is being mobilized again, without any fussy worries about facts.

"Judicial activism" is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.

In recent years, a brand-new definition of "judicial activism" has been created by the political left, so that they can turn the tables on critics of judicial activism.

The new definition of "judicial activism" defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don't need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a "judicial activist."

A judge who lets politicians do whatever they want to, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution.

The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution.

Everything else is left to the states or to the people themselves.

Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals.

That case was a landmark, whose implications reached far beyond farming. If the meaning of "interstate commerce" could be stretched and twisted to cover things that never entered any commerce, then "interstate commerce" became just a magic phrase that could make the Tenth Amendment disappear into thin air.

For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.

But there was consternation among politicians and the media in 1995, when the Supreme Court said that carrying a gun near a school was not interstate commerce, so that Congress had no power to regulate it-- even though states had that power.

Howls of protest went up from politicians and the media because the Supreme Court voted 5 to 4 in favor of an ordinary common-sense reading of the Constitution, instead of the clever word games that had been used for so long to circumvent the Tenth Amendment.

ObamaCare is another piece of Congressional legislation for which there is no federal authority in the Constitution. But when someone asked Nancy Pelosi where in the Constitution there was any authority for passing such a law, her reply was "Are you kidding?"

Two federal courts have now said that they are not kidding.

The ultimate question is whether the Supreme Court of the United States will back them up. That may depend on how soon the case reaches the Supreme court.

If the issue wends its way slowly up through the Circuit Courts of Appeal, by the time it reaches the Supreme Court, Obama may have put more of his appointees there-- and, if so, they will probably rubberstamp anything he does. He would therefore have done a complete end-run around the Constitution and be well on his way to becoming the Hugo Chavez of North America.


Commentary