Constitutional Opinions

A Teachable Moment

How the Obamacare lawsuits can raise consciousness about the Constitution.

By 12.14.10

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For conservatives, Christmas came early on Monday. For liberals, the happy holiday was stolen by a black-robed Grinch. U.S. District Court Judge Henry Hudson ruled that a new federal policy compelling the purchase of health insurance "exceeds the constitutional boundaries of congressional power."

In other words, Hudson determined that the individual mandate -- the centerpiece of the national health care law that is in turn the centerpiece of Barack Obama's domestic agenda -- is unconstitutional. Congress had no power to enact it. The president and his czars have no authority to enforce it. No amount of hiding behind the interstate commerce clause, the necessary and proper clause, or the ability to levy taxes can justify it.

This decision came as a shock to those who did not realize there were any constitutional boundaries of congressional power, or any limits whatsoever to what the political class could do if it set its mind to it. Among the millions of Americans taken by surprise were the president of the United States, most members of Congress, and perhaps even a majority of Hudson's colleagues on the bench.

Hudson's judicial earthquake was triggered by Virginia's lawsuit challenging the constitutionality of Obamacare. The aftershocks will be felt later this week when another federal judge hears a similar lawsuit filed by Florida with the support of 19 other states and the National Federation of Independent Business.

Nobody knows what the courts will ultimately do. This is Supreme Court Justice Anthony Kennedy's world and the rest of us are just living in it. But no matter what happens, this should be a teachable moment for the American people. And it is one that should not be wasted on the "situational constitutionalism" whereby the party out of power conveniently rediscovers the Bill of Rights in between elections.

The Constitution imposes substantive, as opposed to merely procedural, limits on the federal government. It does not simply set the basic qualifications for being one of our federal masters, in the form of residency requirements and minimum ages. It doesn't just divide Congress into two chambers or the federal government into three branches. The Constitution specifies what the president, Congress, and the courts are allowed to do.

The interstate commerce clause, the necessary and proper clause, the general welfare clause, the earnest assurances of big-government senators who hand out little paper copies of the Constitution to schoolchildren who visit their offices -- none of these are escape clauses. If it ain't in the Constitution, the federal government can't do it.

Republicans need to re-learn this lesson no less than the Democrats. During the health care debate, there were no shortage of arguments about whether the taxpayers could afford Obamacare, what effect it would have on insurance premiums, whether it would reduce economic growth, etc. The fact that there was no legal basis for central components of the legislation was almost an afterthought.

The protests are already streaming from the reader's lips. But the Constitution was written by old white guys a long time ago! In ancient times, before Brett Favre was a quarterback and when television was still in black and white. We, in the enlightened, diverse America of the 21st century, need a national health care law now! And lots of other stuff not covered by those pesky enumerated powers, too.

Leave aside, for a moment, that the Constitution has an actual amendment process. Has post-constitutional government really provided us a vastly superior political future? Right now the constitutionally unconstrained creatures of Capitol Hill are bickering over two deeply unpalatable options: strangling an already fragile economy with untimely tax increases or crushing the country with even more debt. Whatever deal they strike by the time they finish will leave some future Congress even less ideal choices.

Returning to the Constitution would not create some utopia or heaven on earth. But it would give us a country less tangled up in laws, regulations, taxes, burdensome government programs taxpayers cannot afford, and debts to unfriendly foreign regimes. We have merely replaced our written Constitution with an unwritten second constitution of Third Rail entitlement programs we can't reform, Supreme Court precedents we cannot reverse, and an increasingly capricious and incompetent federal government we can barely question.

Like George Bailey in It's A Wonderful Life, the absence of constitutional government is felt more deeply than its presence. But it's not as if the Constitution was never born. It has simply been turned into a dead letter by people who pretend to venerate it as a living document.

Perhaps the debate surrounding the constitutionality of Obamacare can be the first step in the founding document's revival.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.