Barack Obama has long seen the U.S. Constitution as an obstacle
to what he considers progress. In a 2001 interview that surfaced
during the presidential campaign, he made this very clear: the
Supreme Court under Justice Earl Warren had failed to break “free
from the essential constraints that were placed by the Founding
Fathers in the Constitution,” Obama mused on a radio show.
The Warren Court was insufficiently radical, he said,
conceding too much ground to the traditional interpreters of the
Constitution as a “charter of negative liberties,” which “says
what the states can’t do to you, says what the federal government
can’t do to you, but doesn’t say what the federal government or
state government must do on your behalf.”
The Founding Fathers, he implied, produced a defective
document, much too passive in its understanding of government’s
possibilities. The founders had set up a form of government to
protect liberty; he clearly wished they had formed a government
to enact equality.
The hubristic character of Obamacare derives in large part
from this view. Obama measures progress not by adherence to the
Constitution but by its abolition. He wants not a “charter of
negative liberties,” but a Leviathan, which he calls a “living”
Constitution, that swallows them up in the pursuit of
egalitarianism.
Tuesday’s smug speeches euphemistically revolved around
this theme. What “makes us the United States of America,” Obama
essentially said, is the “scale” of government’s ambitions. One
would have thought the Constitution “makes us the United States
of America.” No, it is that politicians are willing to flout the
real Constitution for the sake of “hope and change” that makes
America great.
America has supposedly entered into a new and glorious
phase where no one quibbles over such antiquated matters as
constitutional limitation. In that 2001 interview, Obama said he
was “not optimistic about bringing major redistributive change
through the courts.” But now he is. He has given activist courts
a major redistributive change via Obamacare to enshrine as part
of the left’s “living” Constitution.
This “living” Constitution means the real one is dead in
practice, but it is not so dead in the minds of ordinary
Americans that liberals would ever attempt to hold a
constitutional convention to package their enlightened new
understandings into a fresh one. They still have to proceed by
deception, casting every new affront to the Constitution as a
suddenly accurate “constitutional” reading of it.
The value of all the legal suits popping up against
Obamacare is that they force renewed attention to the tyrannical
relationship between the federal government and the states that
this “living” Constitution protects. The suits will fail in the
short term, but at least trigger discussion about the central
question of our politics: Will Americans go back to living under
the actual Constitution or continue to succumb to the fake one
residing in the minds and wills of liberals in power that is
destroying the country?
Obamacare may finally inspire the people to pull the plug
on the “living” Constitution.
Judicial activists and tyrannical politicians have set in
motion through the lawlessness of this “living” Constitution a
form of chaos that will eventually consume them. After all, their
authority depends upon that real Constitution, and if it lacks
authority so do they. If politicians can ignore the supreme law
of the land, why exactly do the people have to obey theirs? If
the Constitution isn’t binding, what makes their laws
binding?
The proponents of the “living” Constitution can get away
with this form of tyranny for a while, and for the reason Thomas
Jefferson stated in the Declaration of Independence, that “all
experience hath shewn that mankind are more disposed to suffer,
while evils are sufferable than to right themselves by abolishing
the forms to which they are accustomed.”
But Obamacare and the single-payer plan that lurks behind
it will make the grievances in the Declaration of Independence
look minor by comparison. What Obama has dismissively described
as outmoded “constraints that were placed by the Founding Fathers
in the Constitution” will look very sensible and relevant in the
years ahead.
