How Progressives Subvert the Constitution

ObamaCare is a textbook example of how the Progressive Movement has subverted and nullified Constitutional limits on the power, authority, scope and cost of the federal government and how elected Senators and Congressmen routinely violate their oath of office.

While most Americans celebrate and revere the Constitution, many of our most powerful political leaders see it as an unnecessary, obsolete impediment.  When I joined the Army I swore an oath to “support and defend the Constitution…without any mental reservation or purpose of evasion.”   Later I learned that the oath of office sworn by Senators and Congressmen includes the same language.


So how is it that the federal government has been able to take on so much power that is not authorized by the Constitution? 

Consider ObamaCare.  Not only does it require citizens to pay private companies for insurance, it also dictates what that insurance may and may not cover and under what terms.  It establishes some 51 new bureaucracies that are empowered to regulate doctors, hospitals and insurance companies in thousands of new ways.

Back in October 2009 a reporter asked then House Speaker Nancy Pelosi to cite the clause in the Constitution that authorized the government to force people to buy health insurance.  She dismissed the question, sneering:

“Are you serious?”

A day later Pelosi issued a press release titled, “Health Insurance Reform Daily Mythbuster: Constitutionality of Health Insurance Reform.” It was typical of The Left’s abuse of the Constitution:

Reform opponents continue to spread myths about components of the [Health Care Bill]  including the nonsensical claim that the federal government has no constitutionally valid role in reforming our health care system—apparently ignoring the validity of Medicare and other popular federal health reforms…As with Medicare and Medicaid, the federal government has the Constitutional power to reform our health care system.

While Pelosi hoped most of us are stupid enough to be hypnotized by this language, Constitutional challenges from many sources, including Liberty Works, are not objections to “reform,” a term that could mean almost anything, but to specific provisions of the Obamacare legislation.

In the Next paragraph Pelosi recites The Left’s standard version of Constitutionality:

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.

To anyone familiar with the history and language of the Constitution, this defiant declaration by the Speaker of the House was and is deeply disturbing.  Unlimited government power was abhorrent to The Founders, who wrote the Constitution.  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 violated the language of the Constitution and turned the vision of The Founders on its head, usually 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;”

This is the clause Speaker Pelosi referenced above when she claimed “broad power to regulate activities that have an effect on interstate commerce.  A review of the Federalist Papers and other contemporary writings makes clear that the unlimited power interpretation of this clause, as cited by Speaker Pelosi, simply is not what the original text means.

In the Founders era, as now, the term “Commerce” meant buying and selling, in this case across state lines.  “Commerce” was not and is not a synonym for manufacturing or for growing crops or for providing services, including medical treatments.

The purpose of this clause was not to grant Congress “unlimited” power over anything.  It was to prevent unnecessary barriers to buying or selling across state lines.   James Madison wrote in Federalist Paper #22 of problems that occurred while the union operated under the preConstitution, Articles of Confederation:

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 another negative example the German empire that similar to America, was an association of independent states:

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.  Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

Nowhere in the Constitution or any contemporary documents is there any notion of federal control of activities because they “have an effect on interstate commerce.”  So what was the basis of Ms. Pelosi’s arrogant claim of unlimited power?  

It 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 could not be considered interstate commerce.  Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.

But the government argued that 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.

Pelosi and her political allies now hold that any idea a politician can conceive is Constitutional as long as it can be said to have an “effect” on interstate commerce.  It’s hard to identify any human activity that can’t possibly have, however remotely, an effect on interstate commerce.  Even that intimate activity that popped into your mind diverts the participants from shopping or watching ads on TV.

The Progressive lie is that The Founders meant for Congress to have unlimited power to intervene and, as Ms. Pelosi’s proudly claimed above, “regulate many aspects of American life.”

The Founders came together from thirteen separate, sovereign states.  Their mission was to guarantee individual liberty and prevent government management of The People’s affairs.  But they recognized that some, legitimate, governmental functions were necessary to protect and maintain individual liberty.  They wanted most of those functions to be the responsibility of the states.  But they agreed that a limited few could be handled more effectively by a federal government that acted for all of the states at once.

The goal of the founders was to create a federal government with just barely enough power to handle that limited list of functions, but without enough power to intervene in the lives of individuals or challenge the authority of state governments.  They viewed the new federal government being chartered by the Constitution as the servant, not the master of the states.  They even added the Tenth Amendment, that Pelosi quoted above, to make sure there was no misunderstanding about their intended strict limits on Federal power.

But Pelosi’s progressive interpretation of the commerce clause as empowering the federal government to regulate or control virtually anything, makes the tenth amendment a cruel joke.  A progressive like Nancy Pelosi citing the Tenth Amendment is like a husband who calls home from his girl friend’s apartment to promise unshakable love and fidelity to his wife.

Barack Obama, Nancy Pelosi, Harry Reid and most of Congress believe an elite few, backed by unlimited government power, can and should make us better than we will make ourselves if we are allowed to live our own lives, free of their supervision.  They believe unlimited government power and reduced individual freedom is justified by the “good” they can achieve through the use of force against The People.

The Bottom Line

The Constitution prohibits Congress from enacting authoritarian ideas, like government management  and control of health care.   So, those who hold authoritarian ideas have corrupted the Supreme Court in order to nullify the Constitution.  The only way to undo this damage is to elect people to Congress who will be faithful to their oath of office and obey the Constitution, even though the Supreme Court has ruled that they are no longer required to. 

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