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.
I agree we need to go after the U.S. Supreme court and undermine its presupposed judicial supremacy. Our opposition will uses them against us, we must be ready to fight that.
Perhaps the shorted way to go about that would be to site and contrast some of the more controversy cases on both sides of the spectrum with regard to the Constitution.
I think most people will not accept the legal nonsense talk and will when given the Constitution realize the words means what they say. Not the complete opposite conclusion the court have somehow conjured up. Clearly something is very wrong with giving the U.S. Supreme court the unlimited authority to define a written document.
Monorprise, I totally agree with you on that strategy. Any society that leaves the fate of its liberty in the hands of 9 unelected people – any people – is in serious trouble. The American mullahs that reside on the court pass on their imperial decrees with virtually no resistance.
I disagree that the Supreme Court based on currently existing precedent would say it is Constitutional for the federal government to force 300 million people to purchase insurance product they don’t want. First, insurance is NOT sold between states, and states regulate it for a reason. The Constitution is that reason. The Constitution is the reason doctors and nurses are licensed on a state by state basis. Equally, such legal requirements that people purchase auto insurance as a condition to driving a car are on a state by state basis — because of the Constitution.
For the Supreme Court to rule that the mandate for purchase of insurance was constitutional would not only be new, it would be to erase the tenth amendment. If that were permitted, where is the limit on federal power, at all?
On that absurd matter of the Supreme Court being the ultimate authority on what the Constitution says, the best piece I’ve ever found on that subject is this article by constitutional scholar Dr. Edwin Vieira: http://www.thenewamerican.com/usnews/constitution/794