Commentary by James H. Shott
Many Americans are outraged at the component in the House Health Care bill that requires people to buy health insurance they don’t want and don’t need. The authors of this legislation felt this mandate necessary to put enough young and healthy people’s money into the system to keep it from sinking faster than the Titanic, which, come to think of it, is a pretty good analogy for the chaos surrounding health care reform. What does it say about this ghastly plan that Americans have to be forced 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 justified things that the nation’s Founders never intended, and in fact things just like the government oppression that the colonists revolted against only several years earlier.
Given that the colonists had endured circumstances bad enough that they took up arms against King George, how can anyone seriously believe that the Founders ever intended for those few words to be used for the government to gain so much control?
Looking back into history, George Mason University professor Walter Williams wrote that a “key failing of the Articles of Confederation [the first governing document of the United States of America] 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 clause and the privileges and immunities clause 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.”
Our elected public servants, however, go merrily on ignoring the protections the Constitution provides you and me against them.
Using the Commerce Clause as the basis, in 1990 Congress passed the Gun-Free School Zones Act. How so? Because, legislators said, possessing a firearm in a local school zone substantially affected interstate commerce. Huh? Well, you see, because violent crime raises insurance costs, and those costs are spread throughout the population, and across state lines, voila: interstate commerce. And if that explanation isn’t satisfying, Congress also determined that crime threatens the learning environment, thereby reducing national productivity, affecting interstate commerce. These interpretations stretch plausibility to the breaking point.
Fortunately for the country, the U.S. Supreme Court ruled Congress didn't have constitutional authority to pass that act, because, "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 thin premise that crime affects the learning environment, thereby creating a negative effect on interstate commerce, then what children eat, how much sleep they get, and even what they do when not in school are also factors requiring government control.
The American people have allowed this twisting of the Founders’ intentions for a variety of reasons, including ignorance, disinterest, and self-interest, the latter when a particular misapplication of the Commerce Clause fits their narrow viewpoint. They might say, “Well, the Commerce Clause really doesn’t have anything to do with outlawing guns near schools, but, hey, we don’t want guns near schools, do we? So let it stand.”
The U.S. Constitution was created not as an instrument of social engineering or of political expedience. It was carefully crafted to achieve a specific purpose: to establish a limited government that would provide a suitable framework for the nation and at the same time provide maximum freedom for American citizens.
But politicians cannot be trusted to omit ideological motivations from the lawmaking process, which is why the judiciary was given the authority to rule on whether laws comport with constitutional mandates. But the judiciary, including the U.S. Supreme Court, is often as political and ideological as the Congress.
Edwin Meese, 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 – rather than on outcomes that reflect the judges' personal biases or policy preferences.”
Liberalizing the meaning of the Constitution like this means that the federal government can justify anything it wants to do by giving it the magic label "interstate commerce," and the limits on federal power under the 10th Amendment and the Bill of Rights vanish into thin air.
A so-called “living constitution” is an unsuitable basis for government, since its meaning changes to fit contemporary passions. If the Constitution means only what each new generation prefers it to mean, the nation has no anchor, and floats aimlessly in the political wind.
Original intent is the only sensible interpretation of the Constitution.
Cross-posted from Observations