Is the Constitution a Threat to Liberty?

by Matt Patterson on November 11, 2011 · 9 comments

in Economy, Features

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Liberty lovers look to America’s Founding Fathers as patron saints, rightly revering the documents those men drafted as bulwarks of individual freedom. How ironic, then, that those very Founders may have  inadvertently planted the seeds of liberty’s demise in the U.S. Constitution itself.

Article 1, Sec. 8, the infamous “Commerce Clause” grants the federal government the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” And ever since it was written, this seemingly open-ended phrase has been used to justify the federal government’s ever-expanding scope and power.

In 1942, for example, the Supreme Court used the Commerce Clause in its Wickard v. Filburn ruling that Congress had the power to limit how much wheat a farmer could grow, even for his own personal use, because home-grown wheat “supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”

Now the Commerce Clause is being used to justify the constitutionality of Obamacare’s individual mandate that every American purchase health insurance or be subject to government sanction. And not just by liberals: Justice Laurence Silberman, a seemingly conservative jurist appointed by Ronald Reagan, joined a recent 2-1 decision by the U.S. Court of Appeals for the District of Columbia Circuit in finding the individual mandate totally copacetic with the U.S. Constitution. In fact, as The Washington Post’s Wonkblog put it, Silberman himself wrote the “full-throated defense of the health reform law.” And the Commerce Clause, predictably, provided the cover.

Conservatives are in a dreadful bind. They want a strict reading of the Constitution to prevent the government from intruding on personal liberties, but what if a strict reading of that document does grant the government the power to encroach on those liberties? At least one conservative judge thinks that it does.

Until now, many had hoped that the courts and the Constitution would save us from Obamacare. Anyone have a Plan B?

Steve Palmer November 11, 2011 at 5:10 pm

“…what if a strict reading of that document does grant the government the power to encroach on those liberties? At least one conservative judge thinks that it does.”

It doesn’t, and I don’t care how many conservative or liberal judges think otherwise. I am fully capable of understanding those words (Aricle 1, section 8) for myself, and it’s clear what they say. Wickard v. Filburn claimed that those words give Congress the power to regulate an activity, although that activity is not commerce and it is not interstate. It’s an absurdity. (http://goo.gl/H6VXC.) Neither the Supreme Court, nor anyone else, can tell me that those words mean the opposite of what they mean.

“Anyone have a Plan B?”

Plan B is Jefferson’s plan A, and it should be ours too. The Federal Government cannot grant itself powers which have not been delegated, as it has attempted to do in Wickard v. Filburn. In the Kentucky Resolutions of 1798, Jefferson wrote, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”. That’s plan A. I’m not particularly interested in the Court’s opinion on the matter. The answer lies in our state capitals, not in Washington, DC.

Jemison Thorsby November 12, 2011 at 9:54 am

“In the Kentucky Resolutions of 1798, Jefferson wrote, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”. That’s plan A. I’m not particularly interested in the Court’s opinion on the matter. The answer lies in our state capitals, not in Washington, DC.”

HEAR, HEAR!

Loretta November 11, 2011 at 11:01 pm

The Commerce Clause itself is not infamous. It has a solid and necessary purpose, which it has fulfilled. What is infamous are decisions like Wickard. It is no coincidence that it was written in the New Deal era. We are in a different era now. I have not yet had time to read Silberman’s opinion. I assume in the meantime it relies in great part on stare de decisis. As a genuine conservative who is not on the Supreme Court, Silberman honors past decisions. Despite the mandatory fealty conservative jurists must pledge to stare decisis during confirmation hearings, the high court can overturn precedent. Who knows, perhaps it will overturn Wickard, and then it is the left that will be in Patterson’s “dreadful bind.” Or a future court may do so. Consider how conservative our court might have been if the Reagan and Bush 41 appointees had been true conservatives? Conservative presidents now, or Republicans who want to be renominated, have a bigger farm team from which to choose.

I find Patterson’s post perplexing. We have no “dreadful bind.” If we do lose in the high court we continue working for conservative presidents and justices. The Constitution is not an enslaving document. Patterson’s “woe is me” approach is a call to surrender. We can win this, one way or another.

Robert Fellner November 12, 2011 at 7:30 pm

This is the weakest argument there is for supporting the actions of tyrannical government. Most progressives smartly choose to ignore or mock the Constitution, the Commerce Clause argument is null and void on itself. There is the valid criticism that “to regulate” means to “keep regular, ensure a smooth flow of” when it was written, as opposed to the definition used today. And that of course is true.

However, the most obvious and easiest way to dismiss this nonsensical argument, is to assume the more broad reading of the Commerce Clause is, in fact, correct. If this were so, the Commerce Clause would give the Federal Government the power to regulate Commerce that affects more than one State. This definition would allow the Federal Government to virtually regulate any activity. There is virtually nothing that one could not make an argument for affecting Commerce in some way. In fact this was done during the FDR administration where a farmer was prohibited from growing a crop on his own farm, for his own personal use, as this allowed him to not buy it from the market, and thus affected Commerce.

If that reading of the Commerce Clause is correct, why was the Constitution written? Why does the 10th Amendment exist? Why is there a relentless use of “powers delineated, only those powers expressly written” etc etc. Put another way, the body and purpose of the Constitution itself, written to expressly specify the few and numerated powers of the Federal Government, carries much more weight as to the intent of one cherry picked sentence that is misinterpreted by deliberately ignoring the context and content of that body of work of which it is a part of.

R.J. November 13, 2011 at 10:20 am

I’m going to agree with Steve Palmer on this. It is not a flaw in the constitution but a flawed interpretation of it. Wickard is an abominable miscarriage of justice and trying to use the commerce clause as a justification for the mandate in Obamacare takes the abuse of the commerce clause to new levels of magnitude in it’s abuse. Not only are they regulating what can be bought, sold, or produced. They are compelling you to purchase insurance from a private entity or be fined for not doing so. If this stands, there is literally no limit to the federal government’s power. We will have been converted from free citizens to subjects by the stroke of a pen! Quite frankly, in that case, nulification will be the only answer…how that turns out, remains to be seen.

Michael Glass November 15, 2011 at 5:18 pm

Why should a national health scheme raise so much angst in the United States about liberty? Other countries such as Canada and Australia have national health schemes, and the only effect on liberty in these countries is that the people live slightly longer, on average, than people do in the United States. So what’s the problem?

Steve Palmer December 4, 2011 at 5:57 pm

@Michael Glass – Life expectancy includes a number of factors which are not attributable to medical care (obesity, murder, auto accidents, suicide, differing definitions for infant mortality, etc…). Control for those factors, and people in countries with socialized health care do not live longer than Americans. Your assertion is incorrect.

Among other reasons, the national health care scheme raises so much angst because 1.) It is going to negatively affect the quality of our health care; 2.) It is going to increase the cost of our health care; 3.) It is going to limit our access to health care; -AND- most importantly, 4.) It is an unconstitutional abuse of power.

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