Special Report

The End Game Is Near

It appears we're headed toward the ultimate battle in the American Left's war on individual liberty.

By 4.12.10

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The American Left has long derided what it considers the romanticized myths regarding the virtue and wisdom of the group of dead, white males most responsible for the founding of the American Republic. It does not celebrate America as a land founded on the ideals (imperfectly as they may have often been realized) of individual liberty, equality under the law, and opportunity, but rather as a land founded on slavery, economic inequality, and exploitation. It should come as no surprise, therefore, that the American Left also disdains the United States Constitution. The United States Constitution, even battered and weakened as it has been by precedents set by various liberal, activist Supreme Courts, still guards the liberty of Americans against the authoritarianism required to impose a fully socialist, or other collectivist, regime. It now appears we are headed towards the ultimate battle in the American Left's war on individual liberty.

The catalyst is the newly enacted "health care reform" law that was opposed by an outright majority of Americans (but endorsed by Fidel Castro who congratulated President Obama and the Democrats in Congress for finally imposing on Americans a system akin to what Cubans have had for decades). The focal point will be the "individual mandate" which requires all Americans to buy health insurance. The broader issue, however, is whether the Constitution in any way limits the power that the federal government can wield over individuals. The Left says "no."

According to the American Left (which now effectively controls the Democratic Party), the commerce clause in the Constitution, which allows the federal government to regulate interstate commerce, in reality allows the federal government to regulate in any way it sees fit any activity that remotely could affect economic activity -- in other words, just about anything, including, but not limited to, an individual's decision to buy, or not to buy, health insurance. I can think of a lot of activities that have more impact on the economy than does my decision on what kind of health insurance, if any, to purchase. For instance, how about my decision on whether or not to have children, and how many, or when I choose to retire? Are these decisions also subject to federal regulation under the commerce clause? One would think that if the authors of the Constitution really meant to say that the federal government has the power to regulate any activity (or even non-activity) it wants, they would have said so, instead of just saying that it has the right to regulate commerce across state lines. But left-wing law professors, journalists, and Democratic Party officials, assure us this is the case. And according to the national Democratic leadership, most everyone who thinks otherwise are ignorant, knuckle-dragging, racist, survivalist, whack-jobs.

Actually amending the Constitution takes significant national consensus. That's a problem when you want to leverage one election victory based on platitudes and "hope" into "bringing fundamental change to America" (to use President Obama's words). It is so much easier to try to get enough Supreme Court Justices appointed who share the view that the Constitution is more of a loose guideline than a legal document, and who are willing to gut the Constitution of all meaning in order to accommodate liberal policy objectives.

To the American Left, the idea that the Constitution exists to limit the power of the federal government is some moldy, if quaint, notion, with no place in the "modern" world. As E.J. Dionne recently wrote in the Washington Post, court challenges to the individual mandate or federal meddling in matters reserved to the states under the 10th Amendment reveal "how far into the past" some people "want to push the nation." Indeed, he even claims "it would take a rashly activist court to find the individual mandate unconstitutional" because of "a more than seven-decade-long understanding of the Constitution's interstate commerce clause that has allowed the federal government to regulate a modern, national economy." According to Mr. Dionne, the irrelevancy of the Constitution, at least in circumscribing the powers of the federal government to impose liberal social policies, is settled law.

Unfortunately, E.J. Dionne's view of this matter is not that of some fringe commentator, using Orwellian double-speak to label the potential faithful reading of the Constitution as the work of "a rashly activist court." This view currently holds sway in the White House, the House of Representatives, and the Senate. It is undoubtedly held by at least three, probably four, and possibly five Supreme Court Justices.

Fortunately, the argument that seven decades of precedent have made it settled law that the federal government has near unlimited power allotted to it under the commerce clause is hogwash. Never before has the federal government claimed the right to force individuals to purchase a certain service or product due merely to the fact that they are alive. And other attempts to justify an expanded federal role in state and individual affairs with tortured interpretations of the commerce clause have, in fact, been shot down over the past couple of decades by the Supreme Court.

The justification most often cited by the Left for the need to uphold the individual mandate is not a legal one but a practical one. It is needed, supposedly, to solve the "free rider" problem. Since treatment is required by law, people can impose costs on the rest of us by not buying insurance and having us foot the bill when they need medical attention. Like much of the rhetoric coming from the current administration on health care, this argument is amazingly bold in its dishonestly. The people for whom it is true that taxpayers (or more often, hospitals) get stuck paying the bill are the indigent (paradoxically, the people that President Obama insists are dying because they don't have insurance and aren't getting treatment). For the rest of us, if we don't have insurance, or if our insurance does not cover some treatment, or if we carry high deductibles (another choice outlawed by the Democrats' new health care regime) we, as solvent individuals, pay the bill. We don't get a "free ride."

The case of the individual mandate potentially carries the legal precedent that the Left has long sought. If the Obama administration and its Leftist allies can win this case when it comes before the Supreme Court, which it ultimately will, they will have the legal ammunition to uphold any federal infringement on individual liberty in the name of regulating a "modern, national economy." The rights of the individual will no longer be protected by the Constitution, but merely allowed by the federal government, subject to revision by whatever faction holds a political majority over one or two elections.

This is not just the outcome that the American Left wants; it is the outcome the American Left needs if it is to "bring fundamental change to America." Most members of the current Democratic majority in both houses of Congress have already shown that they do not care about public opinion when it comes to redefining the relationship between citizens and the federal government. To preserve America as the land of the free, we need the Supreme Court to uphold its solemn duty.

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About the Author
Brandon Crocker is the chief financial officer of a commercial real estate development and management company in San Diego.