Tag archives: Constitution

Return to the Constitution: Judicial Activism or Originalism?

by Zachary Rogers

February 12, 2019

FRC has consistently maintained that the Supreme Court needs to bring legal precedent more in line with the Constitution and the principles of the Declaration of Independence. But if this effort is taken up in earnest by a newly conservative Court, it is likely to be tarred as “judicial activism.” Judicial activism occurs when a judge applies his views rather than a faithful interpretation of the law to the case before him. What is needed, and what we look forward to seeing with the appointment of Justices Neil Gorsuch and Brett Kavanaugh and many more lower court judges, is judges’ faithful interpretation of the Constitution and the laws to the cases before them.

However, many on the Left think that overturning any of the bad precedent churned out by the Supreme Court is partisan judicial activism. It is not. To understand this, we must comprehend the structure the Framers crafted, the role of judicial review within it, and the place of the other branches within this system.

The Framers carefully crafted a system of ordered liberty, which entrusted certain enumerated powers to the national government and reserved the rest to the people and the states. The improved science of politics included checks and balances, separation of powers, and elected representatives.

They did this because the legislature and executive branch “could be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” In essence, Congress would promulgate laws, the president would execute them, and the Supreme Court would adjudicate the relevant laws in individual cases.

The Framers created a system of checks and balances in which ambition would be made to counteract ambition. Each branch was expected to protect its prerogatives and powers, thus enforcing separation of powers and preventing tyranny—the accumulation of legislative, executive, and judicial power. This system of limited government and ordered liberty under the Constitution has shifted since 1787.

The Constitution is the highest law of the land because it is the settled and deliberate will of the people against which congressional laws, executive actions, and Supreme Court decisions must be measured. Traditionally, all three of the branches were expected to be faithful to the Constitution in the execution of their duties.

The Progressive Era, however, caused the modern American regime to shift dangerously to the left. The president is no longer expected merely to execute the laws passed by Congress but to nudge the American people in a partisan direction. Congress spends little time passing laws; instead, it occupies most of its time overseeing executive agencies while delegating lawmaking to executive agencies. The Supreme Court perceives itself the ultimate interpreter of the Constitution—which could be defined in accord with the intent of the Framers or according to the “living” Constitution desired by the liberals.

The rise of the modern court occurred for two reasons. First, the theory of the living Constitution requires the document to be interpreted in accord with the spirit of the times. This requires it to have no fixed meaning, subject to varying interpretation, and acting as a vehicle of “progress” to move the American people forward. Second, modern liberals were able to use the courts to achieve social and political change. They were forced to do so because they were unable to achieve decisive victory at the ballot box, which would have allowed them to implement their desired laws and policy objectives.

One of the reasons Supreme Court practice has strayed from the Founder’s intentions is an erroneous understanding of Marbury v. Madison (1803). The modern understanding of this case is that the Supreme Court’s interpretation of the Constitution is the supreme law of the land, and all officials must comply with it. In fact, the Court ruled that when a law conflicts with the Constitution it is the Constitution that is paramount.

Judicial review is simply the authority to declare acts void when they conflict with the Constitution. A strict fidelity to the original meaning of the Constitution limits judges’ power. If a law violates the Constitution of the Framers, then it must be declared void.

Therefore, Supreme Court decisions are not the last word and may in fact be revisited in order to uphold a proper constitutional construction. In this partisan atmosphere, Christians and conservatives should expect charges of judicial activism in an effort to tar genuine efforts to return to constitutional law. A true recognition of judicial activism lets the American people distinguish between a rejection, distortion, or return to the Constitution.

Zachary Rogers is a Government Affairs intern at Family Research Council.

Barack Obama and Constitutional Originalism

by Rob Schwarzwalder

July 22, 2014

According to the Center for the Study of Constitutional Originalism, “Originalism is the view that the Constitution should be interpreted in accordance with its original meaning — that is, the meaning it had at the time of its enactment.”

Yep — that’s what conservatives believe. The written text had and has a defined meaning, alterable only by amendment. As Senator Mike Lee (R-Utah) has written, “The Constitution itself is not a document of convenience. It specifies an onerous process — bicameralism and presentment — to pass legislation. It imposes a system of checks and balances among the branches. Perhaps most important, it limits the types of power the federal government can exercise.”

That’s not what President Obama believes, however. In his article, “A Brief History of Obama’s Biggest Constitutional Flops,” constitutional scholar Damon Root writes, “Despite his training as a former constitutional law lecturer, President Barack Obama continues to push dubious legal theories that fail to persuade even the most liberal justices to vote in his favor.”

Prior to his election to the U.S. Senate, Mr. Obama expressed great frustration with the “constraints” of the Constitution, observing of the Supreme Court under the late Chief Justice Earl Warren, “… the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.”

At least Mr. Obama admits, albeit grudgingly, that the Founders actually meant something definitive when they wrote the Constitution — even though the then-law school lecturer implies we need to “break free” of such limitations.

So it came as a surprise today when his spokesman cited original intent in chiding the U.S. Court of Appeals for the District of Columbia for issuing a ruling stating that the wording of the Affordable Care Act does not give license to the federal government to “subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange.”

You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” White House spokesman Josh Earnest said. “I think that was a pretty clear intent of the congressional law.”

So, now President Obama is concerned with the intention of federal law? Well, that’s great news. I wonder how that will apply to, say, the First and Tenth Amendments of the Constitution, which he has, up to now, only applied at best erratically. Their meaning, and the meaning of the Constitution generally, can be known through the Federalist Papers, James Madison’s “Notes of Debates in the Federal Convention in 1787,” and the ratification debates held in the states as the early Republic wrestled with whether or not to affirm the Constitution itself.

However, the original intent of any document is expressed in its text, not in what we wish it would be. And the text of Obamacare provides no basis for the federal subsidization of health insurance premiums for, again, “people in the three dozen states that use the federal insurance exchange.”

You can’t have it all ways, Mr. President — either originalism based on the clear meaning of the text matters or it doesn’t.

John Paul Stevens and the Constitution

by Rob Schwarzwalder

April 22, 2014

Retired Supreme Court Justice John Paul Stevens, a stalwart member of the Court’s liberal phalanx, has published a book calling for six amendments to the Constitution he believes would benefit the nation.

I have not reviewed his proposals carefully, although should I do so it is likely I would disagree with most, if not all, of them.  However, Justice Stevens should be applauded at least for this: He recognizes that the text of the Constitution is sufficiently clear that what he thinks should be changed demands amending, as the Founders envisioned, not reinterpretation to facilitate legislation from the bench.

We have a written Constitution precisely because the Founders did not want a national government with expansive, broadening, and undefined powers.  For this reason, they gave us the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  They also gave us the process for amending the Constitution, which we have done 27 times since the document’s ratification.

In other words, the text of the Constitution has a fixed and understandable meaning sufficiently definitive and clear that torturing it into meanings (or “penumbras,” as one Justice infamously put it) its drafters never intended is intellectually dishonest.

Legislating from the bench” has become the Left’s tool of choice for advancing an agenda they cannot enact legislatively.  Neither ideology nor personal sentiment should drive judicial decisions; rather, a common sense reading of the plain text of the Constitution should be any court’s guide.  As Alliance Defending Freedom’s president Alan Sears has written:

If you are in court, and you are in the right, you don’t want to be fearful that the judge might let empathy for your opponent affect his or her decision instead of ruling impartially according to the law. That wouldn’t be true justice or true compassion … (As) Thomas Jefferson noted in 1804 … “the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and the Executive also in their spheres, would make the judiciary a despotic branch.”

Judges are tasked with evaluating arguments and evidence and making just decisions about the issues confronting them.  They are not unelected politicians who have a constitutional right to make law based on personal preference or subjective conviction.

Have they become, as Jefferson predicted, “despots?”  Not in the sense of sending shock troops into the streets or denying anyone the right to vote.  But in the sense too often they are finding in the Constitution pretexts for action that no reasonable person rationally can deduce from the Constitution’s language, a penchant toward law-making rather than law-interpreting seems increasingly entrenched in their minds. 

At the swearing-in of Justice Anthony Kennedy, Ronald Reagan described the role of judges and the danger imposed by “bench legislation:”

The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Arguably, Justice Kennedy has failed to live up to this standard in a number of his key decisions (e.g., rulings on abortion and same-sex “marriage”).  But the charge given him by President Reagan, one applicable to all federal judges in any jurisdiction, remains compelling.

Conservatives should thank John Paul Stevens for acknowledging, even if indirectly, that the Constitution means what it says and says what it means, which is why amending it rather than elasticizing it is needed if changes to the document are desired.  The amendment process can be slow and difficult, for good reason: Altering the charter text of man’s “last, best hope” should always be done with deliberate caution.

Why you should care about Elane Photography

by Travis Weber

March 19, 2014

Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.

Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”

As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”

Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.

Our Constitution — Ordained and Established Legally!

by Robert Morrison

December 13, 2013

Michael Farris is the Chancellor of Patrick Henry College and the founder of the Home School Legal Defense Association. He has offered an amazing analysis of the ratification — let me call it what the Framers called it — the ordination and establishment of our U.S. Constitution. Everyone who calls him or herself a constitutional conservative should read Mike Farris’ compelling legal and historical research.

Farris quotes popular contemporary historian Joseph Ellis’ recent book, Founding Brothers, in which Ellis endorses the view that the adoption of the Constitution was procedurally marred. Ellis notes that that under the Articles of Confederation, which was our only American legal frame of government in 1787, the consent of all thirteen state legislatures was required in order to amend the Articles themselves.

Since the Constitution explicitly states that it will go into effect upon approval of only nine of the thirteen states, it is argued by many historians that the Framers somehow got around this requirement of the soon-to-be-superseded Articles of Confederation. Further, some historians also maintain that the choice of state ratifying conventions instead of state legislatures is also evidence of the Framers pulling something of an extra-legal coup d’état.

Making this case, many historians have argued that the Framers were right to do this because the Rhode Island legislature, for one, was controlled by radicals who opposed any changes that would strengthen the central authority of the Union. These historians cite the unflattering nickname that Little Rhody was given in the 1780s — Rogue Island. Thus, it is maintained, unanimous consent of the state legislatures was impossible.

The Framers were therefore forced to work around the Articles of Confederation and make a pragmatic move to get the new Constitution adopted. In effect, they say, the Framers finessed legality itself in doing what they knew had to be done.

Note that I distinguish between the Founders and the Framers. All the Framers can justly be called Founders, because they helped to establish our constitutional order and our new republic. But not all Founders are Framers. Patrick Henry, Sam Adams, and John Hancock are some of the famous Founders, and great patriots, too, who did not take part in the Constitutional Convention in Philadelphia from May to September 1787.

Farris sets out to show that Ellis is wrong. I think he does a brilliant job of showing that (1) the Confederation Congress approved of the process of sending the newly drafted Constitution to the states for consideration and (2) the individual state legislatures approved the idea of convening ratification conventions in each state.

Mike Farris shows that, even if belatedly, the state legislatures of North Carolina and Rhode Island fell into line and approved the calling of state conventions whose sole task it would be to approve (or possibly disapprove) the new Constitution.

In doing this extensive legal and historical research, Michael Farris has done a vitally important thing. In my constitutional law classes, in my American history and political science classes at University of Virginia, and in my graduate studies in communications history at University of Washington, I was taught the Ellis line. I just assumed that the Framers at some point had to make a pragmatic decision in order to keep the ship of state from going up on the rocks.

Michael Farris’ important article reminds me of what the Illinois lawyer Abraham Lincoln did in his careful dissection of the Framers’ work on slavery. Lincoln in 1859 and early 1860 studied not only the constitutional provisions related to slavery, but also the actions of many of those Framers who went on to sit in our first Congresses under the Constitution.

Lincoln was seeking to prove that Congress did have the power to restrict slavery in the territories, that the Framers acting as elected Members of Congress, took part in re-adopting the famed Northwest Ordinance of 1787. That far-reaching measure was one of the major achievements of Congress under the Articles of Confederation.

Lincoln showed that when the First Congress elected under the Constitution sat in New York, it reaffirmed the Northwest Ordinance’s ban on all slavery in the old Northwest Territory.

Lincoln was not trying to gain recognition in some prestigious law review article. He incorporated his penetrating analysis into his famous Cooper Union Address, delivered in New York City in February 1860. Lincoln did the research that Chief Justice Roger B. Taney failed to do when he wrote his infamous decision in Dred Scott v. Sandford (1857). In that 7-2 ruling, Taney said the federal government had no power to prevent slavery spreading into all the territories. Lincoln refuted Taney masterfully. Many historians credit the Cooper Union Address as his strongest bid for the Republican nomination for president in 1860.

And Michael Farris, I believe, has refuted a horde of progressive historians who have taught us that pragmatism was the pole star of the Framers, that they were right in taking extralegal steps in order to achieve their worthy objectives.

Why does any of this matter today? ObamaCare is why. Every day, we see President Obama’s administration issuing new ukases and diktats relating to one-sixth of the U.S. economy. In the guise of fixing a national problem of uninsured persons, the president is daily achieving his stated goal of “fundamentally transforming this country.” A fundamental transformation means the constitution is being termited. Every day, President Obama and his radical appointees are taking actions unauthorized by the Constitution and antithetical to the Rule of Law.

The states, under ObamaCare, will become mere branch offices of the federal Department of Health and Human Services. That is why a majority of states rushed into federal court to try to block this seizure of power.

The ruling by Chief Justice John Roberts that said the individual mandate is constitutional because Congress has the power to tax us is, of course, an absurdity. It’s a dog’s breakfast of an opinion.

Every advocate for ObamaCare bitterly denied that the penalty for not enrolling the Mr. Obama’s exchanges, or having other government-approved health care insurance, was a tax. They denounced opponents of the legislation for even suggesting that this was the largest tax increase in U.S. history. “It’s not a tax,” President Obama told a television interviewer. Period.

But if it is a tax, then the Constitution explicitly states that all revenue bills must originate in the House of Representatives. This one originated in the Senate.

What Michael Farris has done in his excellent research is to reassure all Americans that the Constitution we received, the Constitution that was — the words have an almost religious meaning — ordained and established — still must be our pole star of legitimacy.

The new book, Freedom National: The Destruction of Slavery in the United States, 1861-1865, by James Oakes, shows convincingly how careful President Lincoln and the Republicans in Congress were to achieve emancipation only through fully legal and constitutional means. These included the adoption of the Thirteenth Amendment.

The Progressives, with their belief in a living Constitution, really are trying to force on us what Jefferson called “a thing of wax.” They pull and shape our basic document into any form they need, in order to achieve the pragmatic goals they want.

No wonder Speaker Nancy Pelosi looked incredulously at the man who asked her whether the health care takeover was constitutional. For someone who has been making it up as she goes along, for decades, Speaker Pelosi must have thought the man was speaking Greek.

Congratulations to Michael Farris for this indispensable contribution to our understanding of the Constitution the Founders — all of them — gave us. It is a jewel of inestimable worth.

The Federalist Papers Still Matter

by Rob Schwarzwalder

May 7, 2012

In today’s Wall Street Journal, Peter Berkowitz of Stanford’s Hoover Institution has written a bracing reminder of the importance of The Federalist Papers and also how the reading of this essential document is being slighted in American higher education. The following quotes are particular gems:

… according to the progressive conceit, understanding America’s founding and the framing of the Constitution are as useful to dealing with contemporary challenges of government as understanding the horse-and-buggy is to dealing with contemporary challenges of transportation. Instead, meeting today’s needs requires recognizing that ours is a living constitution that grows and develops with society’s evolving norms and exigencies.… thus many of our leading opinion formers and policy makers seem to come unhinged when they encounter constitutional arguments apparently foreign to them but well-rooted in constitutional text, structure and history.

The Left, whether in our universities or our federal government, cannot abide a Constitution with a fixed meaning because this implies limitations on federal authority, which inherently would constrict the fundamental and ironic project of American liberalism: the radical autonomy of the individual enshrined in law, and the supervening capacity of the state to make it so. In other words, moral libertinism can only be ensured by a virtually totalitarian government. And since the Constitution has a defined meaning (why would it provide for its own amendment if its words and phrases could be re-interpreted per the desires of the political moment?), applying it as its signers intended is offensive, even primitive.

Read Berkowitz’s piece. More importantly, read The Federalist Papers and the Constitution they so eloquently and clearly explain. A good thing to be reminded why you’re a conservative, now and then.

Fred Grandys Howler/Our Problem

by Robert Morrison

January 15, 2010

Hes probably the worlds funniest vegan. Fred Grandy is known to millions of Americans as Gopher from the hit 70s comedy series, The Love Boat. The Harvard-educated Grandy is the former four-term Republican Congressman from Iowa. He narrowly lost the GOP nomination for Governor in 1994 and went on to serve ably as president of Goodwill Industries. Since 2003, he had had a better platform to reach workers in the nations capital as co-host of the drive-time Grandy and Andy [Parks] Morning Show on radio station WMAL. Ill confess that when I should be listening to books-on-disk, I often give an ear to Fred Grandys offbeat humor and generally smart conservative chatter. Hes not reflexively right wing. Few Iowans are. But, in addition to some side-splitting jokes, he brings some Midwest common sense to a capital badly in need of somebodys common sense.

Thats why it matters when a good man like Fred Grandy launches into a shtick that includes this: Oh, the Founders, they thought black people were just three-fifths of a person. Maybe Fred was joking. Maybe he was pulling everyones leg. But it didnt sound like it.

Political theorists can get pretty heavy duty. Which is why morning drive time includes very few of them as talk show hosts. Bill Bennett is one of the few who can pull it off successfully. But political theorists talk about ideological hegemony. That means you get the other guy—your opponent—to think in categories that youve determined in advance. Another phrase would be setting the terms of the debate.

If even conservatives seriously think that the Founders were so racist as to deny the full humanity of black people, then, Houston, weve got a problem. Grandys three-fifths crack echoes Al Gores infamous rants during the 2000 campaign. Gore demagogically whipped up crowds in Pennsylvania saying that those who favored original intent in constitutional interpretation wanted to deprive black people of their civil rights. They thought you were only three-fifths of a person, Gore suggested.

The Founders thought no such thing. The much-misunderstood Three-Fifths Compromise was just that, a compromise. Northern, anti-slavery delegates to the Constitutional Convention would have preferred not to count slaves at all for purposes of representation in Congress. This would have penalized slaveholding states and given them lesser influence in the House of Representatives. Just as important, it would have penalized them in the Electoral College that chooses our Presidents. Delegates from slaveholding states would have preferred to count slaves fully for purposes of representation, but they didnt want to be taxed fully for slaves.

So the Founders compromised. Its important to point out that such a compromise also existed in the Articles of Confederation, prior to the Constitution, when all taxation was by state.

A little-noted feature of the Three-Fifths Compromise is that it gave a reward—an electoral bump, if you will—to all states that emancipated their slaves. Free the black people of your state, and you get to count them fully for Congress. Then, American you can increase your numbers in the House and in the Electoral College.

Seven of the original Thirteen States got that reward. Tragically, six of the original thirteen failed to free their slaves. And other slaveholding states were later admitted to the Union.

The Founders were anti-slavery. They took pains never to use the words slave, Negro, African, etc, in the great charter of freedom they gave us.

Abraham Lincolns Midwest common sense exceeded even that of Fred Grandy. Lincoln said the Founders hid away in the Constitution the fact that we had slavery, just as a man who has a tumor or wen or other defect tries to hide it from view. Frederick Douglass hailed the Founders Constitution and said not of word of it would have to be changed if the states would only agree to free their slaves. They were both right.

Why does any of this matter today? Because President Barack Obama is using the tragedy of American slavery in 1787 as a pretext for casting aspersions on the Founders great work. Why should we listen to the authors of the Constitution? They allowed slavery to exist. They thought black people were only three-fifths of a person. So goes the liberal take on the Constitution.

It wasnt true then. Its not true now. Lincoln knew that if the Founders had tried to ban slavery outright in 1787, the liberty-promoting Constitution would never have been adopted. But the principles of the Declaration of Independence as embodied in the Constitution were, Lincoln said, like apples of gold in pictures of silver. Lincoln used the words of Scripture to speak of his awe and reverence for the Founders work. Should we have less?

More on Health Care & the Constitution

by Rob Schwarzwalder

November 13, 2009

Sen. Daniel Akaka is probably the quietest person in the U.S. Senate. He is known as a kindly man who votes faithfully but is not a vocal or activist member of the “upper body.” But this week, when asked if there is a constitutional basis for the Democratic health care bill, he candidly said, “Im not aware of that, let me put it that way.”

Good way to put it, Senator, because your lack of awareness indicates that at least you know your Constitution well enough to recognize that it contains no basis for this latest exercise in federal elbow-throwing.

Sen. Akaka’s colleague Sen. Jack Reed (D-RI) could learn from him. Sen. Reed was asked by a reporter where in the Constitution does Congress get its authority to mandate that individuals purchase health insurance?

Reed responded, I would have to check the specific sections, so Ill have to get back to you on the specific section. But it is not unusual that the Congress has required individuals to do things, like sign up for the draft and do many other things too, which I dont think are explicitly contained (in the Constitution).

Sen. Reed is an undoubted patriot, a former Marine who served honorably in Vietnam. So it is disappointing that someone of his political stature would equate the draft with an individual federal mandate of citizens for non-military purposes. To what many other things is Reed referring?

In the 1918 Arver v. United States case, the Supreme Court ruled that the draft is constitutional because it is essence an implementation of the Constitutions provision for the federal government to create a standing army (Article I, Section 8). Men (and women) are needed to defend the nation, and during times of national crisis conscription might be needed.

The Democratic health plan (H.R. 3962), passed last weekend in the House, goes well beyond any authority conferred on the federal government, through our written Constitution, by “We, the People.” In fact, the congressional Joint Committee on Taxation (JCT) wrote to the House Ways and Means Committee that “failure to comply with the terms of the law that the Democrats passed last weekend could put people in jail. The JCT told the committee that anyone who decides not to maintain “acceptable health insurance coverage” or, absent that, pay the individual health insurance mandate tax of about 2.5 percent of income, would be liable to large fines or prison sentences” (The Washington Times, “Tax Penalties and Prison,” by Donald Lambro, November 12, 2009).

The JCT went on to write that “H.R. 3962 provides that an individual (or a husband and wife in the case of a joint return) who does not, at anytime during the taxable year, maintain acceptable health insurance coverage for himself or herself and each of his or her qualifying children is subject to an additional tax.”

This mandate is unconstitutional in its own right and also poses a serious threat to the fundamental liberty of ordinary Americans: When the federal government requires specific economic activity (in this case, the purchase or acceptance of a health insurance plan) and threatens to impose “fines or prison sentences” for non-compliance, our essential freedom as citizens is eroded and our path into coerced political subjection all the more obvious - and dangerous.

Health Care and the Constitution

by Rob Schwarzwalder

November 10, 2009

Family Research Council has several critical concerns with the Democratic health care legislation under consideration on Capitol Hill. The sanctity of human life, although safeguarded in the House version of the measure passed on Saturday, remains a live issue as the bill goes to the Senate. Rationing, costs, patient control of medical decisions, an increase in the size and scope of Washingtons power: These and other matters animate FRCs active opposition to the Democratic approach to revising our system of medical care.

But there is another issue that we have raised and will keep raising as the debate goes forward: The constitutionality of the Democratic plans.

When Speaker Nancy Pelosi was asked recently at the introduction of her mammoth health care reform bill if the measure was constitutional, the usually glib Californian was caught off-guard. Are you serious? she asked. And, a second time, Are you serious? She then turned to another reporter without answering further.

At least House Majority Leader Steny Hoyer gives the Constitution a guilty nod. He says that the general welfare clause gives Congress the right to pass a massive health care bill full of mandates on businesses and individuals and higher taxes for all.

Mr. Hoyers theory of constitutional interpretation would surprise the documents chief author, James Madison. In a letter written in 1831, he said, With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

In other words, the Constitution gives the federal government few and closely proscribed powers. Those powers not given to the federal government shall not be construed to deny or disparage others retained by the people (the Ninth Amendment), and The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (the Tenth Amendment).

The general welfare, then, refers only to those things the Constitution allows or requires the federal government to do (the powers connected with them under the Constitution). Thus, the general welfare is advanced when the federal government does those things it is charged by the Constitution to do nothing more, nothing less.

The general welfare clause is not an open-ended endorsement of whatever Congress deems in a given moment is in the public interest. Were that the meaning of general welfare, no Constitution itself would even be necessary Congress could simply do whatever it wants regardless of any constitutional limitations.

Of course, thats what Congress does most of the time anyway. But at least conservatives can appeal to a written text whose meaning is clear. Were it not, why have a provision for its amendment (why amend something you can simply reinterpret?) and why have an existing and profoundly important amendment that says those things not delegated to the federal government are in the hands of the states (the Tenth)?

Another supporter of Congresss health care power grab, Dean Erwin Cherminsky of the University of California, Irvine School of Law, argues that Congress can enact sweeping health reform under the Interstate Commerce Clause (Article I, Section 8). His reasoning? The cumulative impact of health care activity across the country.

Dean Cherminsky cites an unbroken line of precedents stretching back 70 years. But nowhere does he cite something far more significant indeed, conclusive than the rulings of positivist, post-New Deal courts: The original intent of the Constitutions authors and signers.

As noted by Georgetown University Law Center professor Randy E. Barnett in the University of Chicago Law Review (former Chicago Law Professor Obama, are you listening?), according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

Put a bit more simply, the Clause was simply designed to prevent multiple barriers to trade among the various states. The Clause was a necessary control on the conduct of some of the importing States toward their non-importing neighbors (James Madison, 1832). It was never intended to serve as a pretext for Congress to micromanage, control and/or fund (through taxation) any national economic program, including one that would concentrate regulatory and competitive power over medical care in the hands of the U.S. government.

There is no constitutional basis for the Obama/Pelosi/Baucus approach to health reform. Period. Let us not delude ourselves that this is a serious constitutional debate the debate does not exist, at least within the realm of intellectual honesty. It is settled.

The Democratic Congress does not care, nor does the President, nor do many Republicans. But we, the People, should, especially if we care about remaining a nation whose God-bestowed liberties and rights are protected not by the legislative confections of Congress but by a written Constitution whose text defends us from the intrusions of the federal state if, but only if, we are willing to follow it.

Robert Schwarzwalder has served as chief of staff to two Members of Congress and was a presidential appointee under George W. Bush at the Department of Health and Human Services.