Tuesday, December 01, 2009

Abusing the U.S. Constitution for fun and profit

Commentary by James H. Shott


Many Americans are outraged at the element in the House health care bill that requires people to buy health insurance, even if they don’t need it, and even if they don’t want it. The authors of this legislation included this mandate so that there would be enough money from young and healthy people in the system to keep the thing from sinking faster than the Titanic.

It says a lot about this ghastly plan that its creators have to force Americans to participate in it for it to succeed.

Congress justifies this outrage with the “Commerce Clause” of the United States Constitution. Article I, Section 8, Paragraph 3 says: “(The Congress shall have power) [t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes; …”

Through liberal interpretation of the words “to regulate commerce … among the several states,” Congress has unleashed all manner of horrors on the American people, things that the Founders never intended, and in fact, things reminiscent of the sort of over-reaching government from which the Founders had won their independence several years before.

Given that the colonists finally grew tired enough of the excessive regulation and oppression of King George that they took up arms against him to win their freedom, does anyone seriously believe that the Framers of our Constitution ever intended for these few words to justify so much government control? Our elected public servants, however, continue merrily trampling on the protections the Constitution provides you and me against them.

Looking back into history, George Mason University professor Walter Williams wrote that a “key failing of the Articles of Confederation was the propensity of states to erect protectionist trade barriers. When the Framers met in Philadelphia in 1787 and wrote the constitution that governs us today, they addressed that failure through the commerce and the privileges and immunities clauses that created a national free-trade zone. Thus, the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn't intend for the Commerce Clause to govern so much of our lives.”

Here is one example: Using the Commerce Clause as the basis, in 1990 Congress passed the Gun-Free School Zones Act. How so? Because, legislators said, the possession of a firearm in a local school zone substantially affected interstate commerce. Huh? Well, because violent crime raises insurance costs, and those costs are spread throughout the population across state lines, voila!: interstate commerce! And if that explanation isn’t satisfying, Congress determined that crime threatens the learning environment, thereby reducing national productivity, also affecting interstate commerce.

Fortunately for the country, the U.S. Supreme Court ruled that Congress had no constitutional authority to pass this act. The Court’s reasoning held that, "If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

Indeed. If we accept the goofy idea that crime affects the learning environment and is thus a negative effect on interstate commerce, then what children eat and wear, how much they sleep, and even what they do when not in school are also fair game.

The American people have allowed this twisting of the Founders’ intentions for a variety of reasons, including ignorance, disinterest, and self-interest, as when a particular misapplication of the Commerce Clause suits their purposes. They might say, “Well, the Commerce Clause really has nothing to do with outlawing guns near schools, but we don’t want guns near schools, do we? So, let it stand.”

The U.S. Constitution was carefully crafted to achieve a specific purpose: to establish a government that would provide a suitable framework for the nation and at the same time provide maximum freedom for the citizenry, not as an instrument of social engineering, or of political expedience.

But politicians cannot be trusted to leave political ideology out of lawmaking, so it is a good thing that the judiciary can rule on whether laws comport with constitutional protections. The judiciary, however – including the U.S. Supreme Court – has also been corrupted by ideology.

Edwin Meese, U.S. Attorney General in the Reagan administration, notes that “Taking the politics out of the judiciary is a key tenet behind the concept of constitutional originalism. That's the idea that judges should issue rulings based on the original understanding of the authors and ratifiers of the Constitution and the Bill of Rights …”

The idea of the Constitution as a “living” document – as opposed to honoring the authors’ original intent – means that its meaning changes with the times, enabling outcomes that reflect legislators’ and judges' personal biases or policy preferences.

Polluting the law and the courts with broad and changing interpretations of the Constitution means that anything the federal government wants to do can be labeled "interstate commerce," and the constitutional limits on federal power vanish into thin air.

A “living” Constitution has no foundation upon which to build a stable nation. It means only what today's reader wants it to mean and will likely mean something different twenty years from now. That is not a constitution, it is quicksand.

Cross-posted from Observations

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