Not really, certainly not to the defenders of Obamacare.
Obamacare unconstitutional? The denizens of Washington and their many friends who favor expansive and expensive government are worried. At least one judge has actually read the Constitution. Moreover, Tea Party activists are calling themselves constitutional conservatives and insisting that the Constitution is relevant to the operation of the federal government. It is a frightening concept to those constantly seeking to expand Leviathan.
It has been years since the Constitution has had any meaningful impact on what is done in Washington. True, no one challenges the structural provisions — there are a hundred senators, presidential elections are held every four years, etc. And there are lots of court battles over application of the Bill of Rights, largely because it protects some liberties favored by the Left.
But most congressmen pay little, if any, attention to their authority under the Constitution before they pass legislation. And there probably are more unicorns in the wild than executive branch employees who consult the Constitution before imposing regulations.
Yet read the Constitution and you discover a document that carefully creates a national government with limited and enumerated powers. In contrast to state governments, federal authority is constrained. Washington does not have general jurisdiction, or the so-called police power, authorizing it to intervene in any matter not explicitly barred by law or constitution.
None of the 27 amendments expanded federal power in this regard. The 13th, 14th, and 15th Amendments, passed in the immediate aftermath of the Civil War, did transform federal-state relations: the United States went from being a plural aggregation to a single unit. National power expanded insofar as it protected individual liberty in the states. The constitutional changes did not expand Washington’s authority to infringe the liberty of the same individuals.
However, judicial “interpretation” changed over the years. Although the Founders provided a method to amend the nation’s governing document, activists preferred to take a judicial short-cut. Judges liked the idea of making law and began treating the constitutional text as advisory. This turned the Supreme Court into a sort of continuing constitutional convention, with new amendments routinely enacted with just five votes.
Jurist-legislators covered themselves in high-minded rhetoric. Said the high priest of feel-good jurisprudence, Justice William Brennan: “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principles to specific, contemporary questions.”
Yet the real arrogance is the claim that unelected judges are entitled to overturn settled legal understandings and complex political compromises because they prefer a different outcome. The proper interpretive objective is not to discern the secret intent of a handful of drafters at the Constitutional Convention or a later Congress, but to respect the common expectations of the legislators and citizens who drafted and passed the provision at issue. If the people’s intentions are not controlling, then what is the purpose of the Constitution? The document should simply authorize the executive and legislative branches to do whatever they feel like, subject to judicial review, which will be based on whatever the judges feel like. Why bother with the pretense that constitutional interpretation is occurring?
Not every constitutional question has a clear answer, of course, but that doesn’t mean honest application of originalist principles allows any answer. The nation’s founding document envisioned a national government of enumerated powers. A jurisprudence of unlimited national power violates the nation’s basic law.
Lincoln Caplan of the Legal Times recently justified the “government-can-do-anything” position with an appeal to the phrases “We the people,” “a more perfect union,” and “the general welfare.” All of these are in a preamble written by men who believed that the way to promote the general welfare for the people was through a more perfect union in which the government had only limited power. Revolutionaries who had fought against the excesses of king and parliament were determined not to allow similar abuses in the new nation they created. Silly idealists. They didn’t foresee modern liberalism.
Caplan sneers at the “nostalgia for an inadequate version of the country’s past.” Yet the problem of government abusing power and violating liberty is eternal. That’s why the Founders consciously limited the national government by enumerating its authority. Has time passed their handiwork by? Then the people can follow Article V and amend the Constitution. It isn’t easy, but that is no argument against following the law.
In contrast, advocates of a “living” Constitution prefer lawmaking by zeitgeist. If it feels good, interpret it, was always the unstated approach of Justice Brennan and those who shared his philosophy. Consider the jurisprudential theories, if they deserve to be called such, offered by the book The Constitution in 2020, published last year.
One standard bases judicial interpretation on a “dynamic” sense of history and tradition. Using this argument, the courts should declare a “right” to public education. Another approach is to base constitutional doctrine on “consensuses,” that is, when a big majority of people believe something. Judges get to determine the right-sized majority and the exact consensus that results.
Possessing even less meaning is the “time is right” philosophy, which posits that judges should change the Constitution when, yes, the “time is right.” Obviously legislators have no sense of right timing and little things like the political process shouldn’t get in the way. So leave it to judges. Moreover, a “constitutional moment” may arise with the passage of “landmark legislation.” In this case there is no reason to bother amending the Constitution when you merely have to pass a bill.
Finally, rights should result from the activities of “social movements.” With this form of judicial make-believe there’s no need even to pass a bill if you have organized a “movement.” After all, these “organized communities” are sort of mini-constitutional conventions, even if the rest of us weren’t invited to attend.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?