Note From the Publisher

Constitution Care

By From the March 2010 issue

When asked by a reporter where Congress gets the constitutional authority to require Americans to buy health insurance, Nancy Pelosi peered over her glasses and responded, "Are you serious? Are you serious?"

Democrats in Congress, egged on by their president, are, as this is written, racing against the clock to pass Obamacare, one of the most massive intrusions into the personal affairs of the American public in history, and one of the most unconstitutional. Given their oath to support and defend the Constitution against all enemies, foreign and domestic, potentially unconstitutional legislation is troubling, to say the least. But what is worse is that Democrats in Congress and the president (who once allegedly taught constitutional law at the University of Chicago law school) really don't give a rat's ass what the Constitution says.

The wisdom of the Constitution is its protection of liberty against the actions of government. The first 10 amendments -- the Bill of Rights -- set forth the vast difference between the American form of government and the European. Americans consider liberty paramount, and the rights protected are individual rights -- things like the right of free speech, exercise of religion, the right against unreasonable (government) searches and seizures, and so on. Ask a German or Frenchman what rights he has, and he'll tell you the right to a good meal, a good job, pension, and housing, and good and free health care.

Liberals have always felt constrained by the Constitution. Barry Goldwater, who was in battles with more than a few liberals, wrote years ago that the Constitution "was intended to frustrate a tyranny of the masses and self-seeking demagogues." Liberals' goal in life is largely to expand government power at the expense of individual liberty and, where the Constitution gets in the way, as it usually has, they will do whatever they can to stretch, discount, change, or otherwise subvert the Constitution; too often, liberal judges have been willing accomplices in that exercise.

Although Congress has, over the years, attempted to enact bills of questionable constitutionality, Obamacare may push such efforts to new horizons. Never has Congress mandated that citizens must buy anything, and there is no authority within the Constitution to authorize it to do so. If Congress can force people to buy health insurance, after all, it can force people to do anything at all.

The Constitution's commerce clause -- which enables Congress to regulate interstate commerce -- is cited as the most likely authority for Obamacare. And the commerce clause has been stretched by the courts to authorize federal involvement of policies never dreamt of by the founders. But never, except in wartime, has the Supreme Court authorized an expansion of federal power such as is envisioned by Harry Reid and Nancy Pelosi, and to do so now would require it to traipse vastly further to the left than it ever has before.

For Congress, at the behest of the president, to spend the better part of a year debating a legislative proposal so blatantly unconstitutional is irresponsibility at its utmost. It undermines the Constitution, and it places the courts in the position of supervising democracy that the other two branches seem incapable of doing. Let us hope that when the time comes, the courts will use their constitutionally given powers to preserve individual liberty rather than defer to an irresponsible Congress and president.

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About the Author

Alfred S. Regnery is a former publisher of The American Spectator. He is the former president and publisher of Regnery Publishing, Inc., which produced twenty-two New York Times bestsellers during his tenure. Regnery also served in the Justice Department during the Reagan Administration, worked on the U.S. Senate staff, and has been in private law practice.  He currently serves on several corporate and non-profit boards, and is the Chairman of the Intercollegiate Studies Institute .