Our previous post reveals the blatantly dishonest Commerce Clause precedent now used to abrogate the Constitution and embolden politicians like Speaker Nancy Pelosi to openly claim it grants to Congress unlimited power.

We presented the two most important questions Supreme Court nominee Elena Kagan must be forced to answer in her confirmation hearings:

Does the Constitution impose ANY limits on federal power to intervene, regulate or control The People’s personal lives or business activities?  If so, where in the Constitution does a Supreme Court Justice find those limits?

In this 80 second video Senator Coburn comes close to demanding an Answer from Ms. Kagan.  However, he is apparently uncomfortable with the silence as she struggles to find words that appear to answer without answering and he lets her off the hook.

It is imperative that  Senators bring the Commerce Clause issue to the attention of the public and the voters by demanding that Elena Kagan disclose her views.  She will likely refuse to answer but that refusal will reveal her agreement, that the Constitution no longer operates as a limit on government power.

In the video below Republican Senator Kyle, one of those we depend on to haul the truth out of this reluctant nominee, expresses the astounding view that it would be inappropriate for Ms. Kagan to tell the Senate and the public her views on the Commerce Clause!

I don’t want a Justice who goes into the court with an idea of how she wants to rule in certain cases, with a predisposed notion of how justice should come out.  I want her to read each case based on the facts and on the law and then decide it.

So what is the purpose of confirmation hearings?   If the Senate and the public isn’t even entitled to know if the nominee believes there are ANY Constitutional limits on Federal power then why even hold hearings?  Why not just wave her through by unanimous consent?  Why does the Constitution require the Senate to confirm the President’s nominee?

If Kyle’s prevails, Republican Senators will have let pass a rare opportunity to alert the American People to the dangers ahead.  There won’t be many more such opportunities.

Does the Constitution impose ANY limits on federal power to intervene, regulate or control The People’s personal lives or business activities?  If so, where in the Constitution does a Supreme Court Justice find those limits?

These are the questions Senators on the Judiciary Committee should ask Elena Kagan as her Confirmation hearing continues today.

Even if her confirmation by the Democratic party majority is a foregone conclusion the hearings can still be what liberals love to call “a teachable moment.”  There is in America a renewed interest in the Constitution and the timeless principles of liberty and individual autonomy that guided the visionaries who wrote it.  These hearings can focus public attention on the cancerous accumulation of Unconstitutional power in Washington.

The recently enacted ObamaCare legislation will force unprecedented government intrusion upon us, even including a requirement that every person purchase a government approved health plan. To counter complaints that ObamaCare was Unconstitutional Speaker Nancy Pelosi issued a press release that stated, in part:

The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states … or to the people.  But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.  Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

This defiant declaration by the Speaker of the House is an outrage to anyone who understands the Constitution.  Unlimited government power was abhorrent to The Founders.  A Congress with unlimited power over any industry or sector was exactly the outcome they were determined to prevent.

Tragically, over the past century politicians and judges and Supreme Court Justices have brazenly twisted and perverted the language of the Constitution and turned the vision of The Founders on its head, largely through deliberate misinterpretation of what is known as the commerce clause:

“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

A review of the Federalist Papers and other contemporary writings makes clear that the modern interpretation of this clause as expressed above by Pelosi is definitely not what the original text means.

In the Founders era the term “Commerce” meant buying and selling transactions, in this case across state lines. The purpose of this clause was to prevent barriers to buying or selling across state lines.   The purpose was not to empower the government to run everything.  James Madison wrote in Federalist Paper #22 of problems caused by state governments that had attempted to interfere with commerce:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.

Madison cited as a negative example the German empire that, similar to America was an association of semi-independent jurisdictions:

The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.

Clearly, this clause was meant to empower the new federal government to regulate interstate transactions, not the products or services that were exchanged in those transactions.  And if a transaction did not cross state lines – purchasing the services of a local physician for example – government was granted no regulatory authority at all.

So how could Pelosi claim the commerce clause, intended to regulate interstate transactions, grants her unlimited power to regulate physicians’ medical practices, dictate the terms of health insurance policies, and require every person to buy one?

The basis for Ms. Pelosi’s arrogant claim of unlimited power, was the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111 (1942).  During the Great Depression Congress had imposed limits on crop production, in an effort to help farming businesses at the expense of everyone else by artificially reducing food supply, which would cause food prices to rise.

Mr. Filburn was fined by the government for violating the limit by growing “too much” wheat.  He argued that his entire wheat crop was consumed on his own farm, mostly as chicken feed, and was not sold to anyone and therefore was not an interstate commerce transaction.  Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.

But the government argued that Mr. Filburn affected interstate commerce by growing his own wheat rather than buying it on the open, interstate market.  The court took the government’s side and the rest is history.  Not only did the court expand the power to regulate interstate transactions to include regulating the amount of wheat product farmers could raise and sell, it was even extended to Mr. Filburn’s personal wheat harvest that was never sold to anyone!

Pelosi and her political allies believe that any idea a politician can conceive is Constitutional as long as it involves an “effect” on interstate commerce. Since it could be argued that virtually any human activity could, however remotely, effect interstate commerce, we are now told by progressives that The Founders meant for Congress to have unlimited power to intervene and control every aspect of our lives.

The Bottom Line:

Does Elena Kagan agree with the political establishment that there are no limits on the power of the federal government? Or, does she believe Wickard v. Filburn was wrongly decided?  If Ms Kagan is not required to answer, the confirmation hearing will have been a useless, tragic farce.

If she does confirm her belief that the government has unlimited power and is still confirmed by the Democrat majority, Republicans will have the once-in-a-century opportunity – if they are up to the challenge – to redirect the national agenda away from vacuous slogans about hope and change, to restoration of Constitutionally limited government based on the principles of liberty and individual sovereignty.

Two years ago this week the Court debunked what had been, for nearly a century, the prevailing legal interpretation of the Second Amendment.  This interpretation, a contrived fiction invented by anti-liberty progressives, held that the Amendment was not written and added to the Constitution to protect an individual’s right to own a gun.

Rather, said the progressives, the founders intended to give government a so-called “collective right” to issue guns to on-duty National Guardsmen.

Even a casual review of Constitutional history reveals as preposterous the leftist notion that the founders intended for the Bill of Rights, a list of protected individual rights, to include an assurance that government troops could be armed. The founders’ fundamental mission, expressed in the Declaration of Independence, and throughout the drafting of the Constitution and Bill of Rights was to protect individual liberty from the inevitable tendency of governments to grow and become too powerful and oppressive.

Two  years ago, in the Heller case, the Supreme Court struck down a thirty-two-year-old Washington D.C. law forbidding individual ownership of firearms. In this landmark ruling, the court affirmed the intent of the authors of the Second Amendment to protect the right of individuals to own guns that preexisted the US government, or any of the states.

Two years ago the Justices in the minority put enormous effort into rehashing all the specious arguments of the past century to defend the tortured “collective right” interpretation. Here are a couple of excerpts from the minority’s dissenting opinion that summarized their thinking:

“…nothing in the Constitution protected the use of arms outside the context of a militia authorized by law and organized by the State or Federal Government.”

“In 1901 the President revitalized the militia by creating the National Guard of the several States.”

On Monday, the Court ruled that the right to own a gun applied not just in Washington D.C. but in all the states.  The case,  a suit brought by residents against the City of Chicago, challenged that city’s gun laws which effectively banned all private gun ownership.

The establishment media seems to have forgotten then-Senator Obama’s reaction to the Heller decision two years ago, in the midst of the Presidential campaign:

I have said consistently that I believe the second amendment is an individual right. And that was the essential decision that the Supreme Court came down on.

Yet the first Justice Obama appointed to the Court, Justice Sotomayor, sided quite predictably with the minority, in favor of allowing states or cities to ban gun ownership, in violation of the Second Amendment.

We’re told she’s compassionate, brilliant, and in the President’s words “one of the nation’s foremost legal minds.”  She “understands that Court rulings affect ordinary people.”

But the media are silent on the most important question: Does she believe the Constitution places any absolute limits on government power?

Soon the Senate Judiciary Committee will hold dramatic, televised hearings to consider her appointment.  The Republicans should seize the opportunity,  ignore the usual banalities, and lay before the nation a vigorous and forceful examination of the U.S. Constitution and the proper role of government and the courts under that Constitution.

In his speech announcing his appointment of Ms. Kagan, President Obama praised retiring Justice John Paul Stevens:

For nearly 35 years, Justice Stevens has stood as an impartial guardian of the law, faithfully applying the core values of our founding to the cases and controversies of our time.

If only it were true!  But it isn’t.  During Stevens’ tenure the Supreme Court has handed down scores of rulings that contradict, and even mock “the core values of our founding,” as found in the Constitution and the Declaration of Independence.   The Justices have willfully misinterpreted phrases and clauses to facilitate expansion of the power, scope and cost of the government far beyond the limits the founders wrote into the Constitution.

Today, politicians from across the ideological spectrum speak of the Constitution as if its text were a cryptogram to be decoded only by the nine robed oracles, and only one issue at a time, with no consistent principles.  Senators and Representatives openly conduct the business of Congress as if there were no Constitutional restraints on governmental power.   Their assumption is that any idea or scheme becomes Constitutional when it attracts 218 House votes, 51 Senate votes and the President’s signature.  Years later it may be challenged and the Supreme Court may rule on it.  But in the meantime they tell us it’s not their place to “second guess” what the Justices might decide.

A recent example is the new, 2,500 page Health Care law that includes a requirement called the “individual mandate” that all persons buy health insurance from private companies.   Few public officials are willing to flatly state their belief that it either is or is not Constitutional.  Most say “it may not be…” or “it probably is…”

How can they not know?  The Constitution is not hard to read or understand and nowhere does it authorize Congress to make such a demand of citizens.  The individual mandate is plainly Unconstitutional.  Yet the Democrats passed it into law, and Obama signed it, hoping that five of the nine justices will, based on some specious pretext, agree on a ruling that permission to use force against people in this manner is hidden in the text or in some obscure precedent.

So far, the Kagan controversies reported by the media are trivialities.  Does she respect the military?  Is she friends with Goldman Sachs?  Republicans should lead a departure from the usual red herrings and focus on her view of the Constitution.  She should be forced to answer fundamental questions starting with:

Does the Constitution impose any limits on the power of the federal government, and if so, what are those limits and where in the Constitution are they?

This week we have seen what post-Constitutional government looks like.  No-limit government means our liberty, rights, and prosperity are always subject to the whims of erratic political forces in Washington.

Whether or not we the people will be subjugated by an authoritarian government take-over of health care, with it’s  resultant loss of liberty, impenetrable bureaucratic complexity, and horrendous cost, now depends on which alternative Democrats think will be least catastrophic for their party in the November election.

As the polls below demonstrate, a substantial majority of the public is against ObamaCare.  In particular, independent voters, whom Barack Obama can thank for his Presidency, are overwhelmingly opposed.  Democrats now face two choices, and for them both are indeed grim:

1. Attempt to force passage via a combination of Reconciliation and even more outrageous bribes of individual members in exchange for their reluctant votes. If they try this and succeed they hand Republican challengers the ideal, poll tested issue to campaign against and will loose dozens of seats in November.  If they try it and fail the Republicans will still clean their clocks at the polls with the simple campaign slogan, “vote these guys out. It’s the only way to be sure ObamaCare doesn’t come back next year!”
2. Give up and let their dream of an extreme makeover of the nation’s health care be swept into the dust bin of history. If they choose this they’ll lose big time in November because their Leftist base will boycott the election and withhold campaign donations.  And, the same Republican campaign theme, fear of ObamaCare coming back can and will still be used against them.

The U.S. Constitution guarantees individual liberty by limiting the power and scope of government to a few functions called “enumerated powers.”  Providing medical services, forcing people to buy health insurance, and regulating the terms of health insurance policies by bureaucratic decree were not included on the list of enumerated powers.

But, as we wrote here, the Democrats now hold that the Constitution empowers them to do anything they can ram through Congress.  In Nancy Pelosi’s own words, they have “unlimited power” over our medical care. Many, though not all Republicans are only a little better when it comes to adherence to Constitutional principles.

Thus, we can no longer expect elected officials to obey the Constitution and protect rather than diminish our liberty.

All we can do now is wait and watch as Nancy Pelosi, Harry Reid and Barack Obama decide not if our liberty is important, but which disagreeable option is least horrible for future of their political party.

We can also begin planning a new, urgent, forceful campaign for Constitutional government.

…the balance of power in determining the course of events — and the fate of the Obama agenda — lies with about a dozen centrist senators, a few of them Republicans but most Democrats.

If the Constitution were still recognized by Congress as the supreme law of the land there would be virtually no federal government involvement in medical services or health insurance, except for the military and government employees.  ObamaCare would not even be considered.

If Obama had bothered to read it, he would know the Constitution doesn’t authorize the government to start it’s own health insurance company or attempt to allocate and ration medical services in order to meet an arbitrary national health care spending limit, imposed by politicians and determined by political horse trading in Washington.

The Wall Street Journal article describes a polarized Congress, with virtually zero Republican support for Obama’s agenda.  On paper, Democrats have a bullet proof majority that should make Obama a virtual dictator.  But eight Democrat Senators from more conservative states are not dependable, lock step votes.  They could  derail ObamaCare.  The article concludes:

So the moderates have power — but toward what end? In general, they want to reduce the 10-year, $1 trillion price tag of the House health bill, and they surely don’t like the idea of paying for the whole thing with a surtax on wealthier Americans. “I would hope what the Senate would look at would be more of a mix” of revenue sources, says moderate Democratic Sen. Mark Warner of Virginia.

Sadly, these “moderates,” like their hard-line liberal colleagues have no interest in protecting the lives and liberty of Americans from an Unconstitutional  invasion by a government bureaucracy empowered to regulate and ration medical services.  Their concerns are strictly cosmetics.  If ObamaCare becomes law it will, like it’s Medicare predecessor, require continuous funding increases.  Any tax limitations the “moderates” win now will last only until the first, inevitable, “funding crisis.”

Apparently no Congressman or Senator has asked what should be the fundamental questions:

• What about individual liberty?
• Is ObamaCare permitted by the Constitution?
• Is the Constitution still the supreme law of the land?

The “moderates” are more interested in milking their temporary political clout.  They strategy will be  to  exchange tie-breaking votes for cosmetic changes in the legislation, PLUS political favors or money from this President who has demonstrated himself willing to ruthlessly disregard Constitutional limits on his own power to get what he wants.  Because their strategy will produce no benefit for themselves if ObamaCare goes down in flames, they must in the end vote to pass it.

Thus, The People are not protected from the threat of ObamaCare by patriotic Senators’ who took an oath to defend The Constitution.  The only possible protection provided by Senators is a potential breakdown in Democrat Party discipline  due to political miscalculation or incompetence on the part of either the “moderates” or party leaders.