I haven’t been too friendly to some of the solutions that Randy Barnett has offered for the problems we face, but – in regards to an original understanding of the purpose and intention of the Constitution, you’d be hard-pressed to find someone better.
His recent blog post over at Volokh, regarding his rebuttal at Politico.com to law professor Timothy Stoltzfus Jost, is just fantastic. It’s on the so-called “constitutionality” of national health care.
Here’s a brilliant excerpt from Barnett:
The power “to regulate commerce . . . . among the several states”? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both “necessary and proper”). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity. Reduce…
The “spending power”? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are “necessary and proper for carrying into execution the foregoing powers.” So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?
But following the text of the Constitution is so Eighteenth Century. Professor Jost tells us that “a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform.” So the Supreme Court gets to rewrite the written Constitution as we go along.
Never mind Dred Scott, Plessy, Korematsu and other not-so-famous Supreme Court “mistakes.” The Constitution was what the Supreme Court said it was–until it changed its mind. And the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text.
Read his full post here. It’s definitely worth your time.