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.