The silver lining in the Supreme Court’s decision on ObamaCare is that it ratcheted back Congress’s power and authority under the Commerce Clause. That’s a victory for Freedom, for on page 43 of the Court’s opinion, Chief Justice John Roberts writes (italics added):
“Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.”
To repeat, under the Commerce Clause, “Congress may simply command individuals to do as it directs.” So the Chief Justice has done us a favor, as few Americans relish the thought of being bossed around by the likes of the Pelosi-Reid Congress, the worst Congress in history.
What was on trial in National Federation of Independent Business v. Sebelius was the expansion of federal power. The big question in NFIB v. Sebelius was: Does the Commerce Clause grant Congress the power to command individuals to buy a product?
In oral arguments, justices repeatedly asked the Solicitor General for some “limiting principle” so that Congress couldn’t just command Americans to do anything. No such principle was presented, so the Court struck down the individual mandate to buy health insurance.
America is a nation of dual sovereignty, where the States (and the People) retain power except for those powers the Constitution vests in the federal government, which the States created. The federal government is therefore a limited government of enumerated powers. America’s dual sovereignty is unequivocally confirmed by the Tenth Amendment.
Before the Court’s ruling, it had been said that regardless of which way it went, the decision in NFIB v. Sebelius would reverberate for decades. But because the Court’s decision left most of ObamaCare standing, Republicans have vowed to “repeal and replace” it if given power in November. Repealing and replacing ObamaCare, however, isn’t enough; America needs safeguards that will prevent such power grabs by other rogue Congresses.
What can we do to prevent another assault on Freedom like ObamaCare? The answer lies in the precedents used to justify ObamaCare, one of the main ones being the infamous 1942 Supreme Court decision in Wickard v. Filburn. That un-American decision denied Americans the right to cultivate their own land for the purpose of feeding themselves. Because of all the problems that have flowed from that dreadful decision, it needs to be overridden at the very highest level. So I do hereby propose the following amendment to the U.S. Constitution:
Amendment XXVIII, Section 1: Except for plots of land in densely populated urban areas, the right of the People to farm and/or ranch their own property for the purpose of feeding themselves and their families shall not be infringed.
Call it the “Freedom to Farm Clause.” (Wouldn’t it be interesting to see what kind of objections progressives would mount to such a clause?) Other sections of the amendment could address other areas where the federal government has usurped too much power. Section 2 of our new amendment could directly address ObamaCare by prohibiting Congress from mandating that individuals buy a product and/or taxing them for not having done so. Section 2 could also prohibit Congress from requiring individuals to enter into a contract with a private party.
Most conservatives are averse to tinkering with the Constitution. And some might contend that the decision in NFIB v. Sebelius already overrides Wickard, thus obviating amendment. But just as Wickard was overridden so too can NFIB be overridden. America needs something stronger than just another case law decision handed down from the judiciary, regardless of how correct it may be. And, our new amendment could also address recent outrages against property rights by limiting the power of government to take private property through eminent domain and through “civil forfeiture,” a veritable racket. The amendment could therefore target state and local governments that are also running amok.
But the main targets of Amendment 28 would be the Commerce, General Welfare, Necessary and Proper, and any other clause in the Constitution that Congress has used and abused over the last 80 years to “justify” their expansion of the power of the federal government. These clauses should not be used to rubberstamp whatever Congress wants to do. For its ratification campaign, the working title of the amendment might be “the Restoration Amendment.”
The above proposal will find wide acceptance and won’t be controversial to anyone — except progressives wanting dominion over every corner of our lives.
What a sad state America has come to that another amendment would be needed to ensure Freedom. After all, this is America, the Land of the Free. But our overlords in D.C. have degenerated to the point that Rep. Pete Stark (D-CA) can say: “The federal government, yes, can do most anything in this country [terrific video].” (After this statement and other incidents where he displayed his contempt for voters, Californians actually reelected this Stark.)
Despite the appalling expenditure of time and money, ObamaCare will not be a total waste if we use this experience to reestablish the balance of power between the federal government, the States and the People. We must seize this moment to re-forge the original character of America. The Restoration Amendment will help America to reinforce her Founding.
Latest posts by Jon Hall (see all)
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