The Dawn of A Constitutional Transformation

Millions of citizens in the tea party movement have begun to demand that Congress obey the Constitution.  This week a federal court gave them much needed validation.

Back in October, 2009 in the midst of frenzied, back-room deal-making to cobble together bare majorities in the House and Senate to enact ObamaCare House Speaker Nancy Pelosi was asked to cite language in the Constitution authorizing the government to force individuals to buy health insurance.  Her arrogant, sneering response:

“Are you serious?”

A bit later Pelosi issued a press release called, “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 [House 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.

This was an obvious obfuscation.  Constitutional objections from many sources, including Liberty Works, were not objections to “reform,” a happy word that could mean almost anything.  The actual objection is that most of the new government powers in ObamaCare are not authorized by the Constitution.

In the Next paragraph Pelosi recited her version of Constitutionality:

…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 claim of unlimited power shocked anyone who understood the history, language and intent of the Constitution.  A Congress with unlimited power was exactly the outcome the authors of the Constitution were determined to prevent.

The House and Senate went on to enact their audacious, 2,500 page monstrosity, including at least 51 new bureaucracies and hundreds of new powers assumed by the government in defiance of the Constitution.

The political-media establishment joined Pelosi in dismissing anyone who raised a Constitutional Objection as “silly” or “unqualified” or “ignorant of history.”

A lawsuit eventually joined by Twenty-six states was filed against ObamaCare and this week Judge Roger Vinson of the US District Court, Northern Florida issued an order that vindicated the silly, the unqualified and the ignorant.   He declared the individual mandate Unconstitutional.  And because the individual mandate is the scheme’s indispensable funding mechanism he declared the entire act Unconstitutional.

Government lawyers argued that the individual mandate was a Constitutional exercise of Congress’ power to regulate interstate commerce.  But in the Founders era the term “commerce” did not refer to production of goods or provision of services such as health care.  Commerce was buying and selling transactions, in this case across state lines.  The purpose of this clause was to empower Congress to prevent the states from erecting taxes or other barriers to transactions across state lines.

Beginning in the 1940s the Supreme Court issued rulings that changed the meaning of “commerce” from buying-selling transactions to virtually any activity that could be said to be economic.  Then the court expanded the power of Congress to regulate anything that had “a substantial effect” on commerce.  Since virtually any activity could be said to, however slightly or remotely “affect” commerce the protection the people now have from governmental interference in virtually any activity has been reduced to one, ambiguous word, “substantial.”

Judge Vinson reviewed the tortured interpretations of the Commerce clause that served to expand federal power far beyond what was contemplated by the Constitution’s authors.   Then he drew a line at using the Commerce Clause to justify a requirement that every person buy a government approved health plan.    Here’s just one of several excerpts from his opinion referencing the founders and the original meaning of the Constitution:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

The section of the law he referenced does indeed seem to claim the individual mandate  justifies itself in that it will affect commerce.

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power and we would have a Constitution in name only.  Surely this is not what the Founding Fathers could have intended.

We are on the leading edge of an historic change in national direction, away from perpetually expanding government, toward a new awareness of and respect for the Constitution.  Growing numbers of people are identifying themselves as “Constitutionalists” and are no longer willing to accept Presidents, Senators, Congressmen and bureaucrats who operate as if they have unlimited power with no Constitutional restraint.