by Bob Marshall, via American Thinker

By tomorrow, the U.S. Supreme Court will have spent six hours hearing oral argument over a three-day period about the constitutionality of the Patient Protection and Affordable Care Act, better known as ObamaCare.  After the argument on Tuesday, the Court will address the question: “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”  That sterile statement of the issue on which the Court granted certiorari vastly understates the significance of this case.  The truth is that this case will determine whether there are any meaningful limitations on Congress’ power to mandate an individual’s life choices.

When Congress’ power under Article I, Section 8 — power to “regulate commerce … among the several states” (Clause 3) — has been paired with Congress’ power “to make all laws which shall be necessary and proper for carrying into executing the foregoing powers” (Clause 18), the result has been the virtually unlimited power of Congress to dominate the everyday behavior of the American people, in direct conflict with the plain language of the Tenth Amendment reserving such powers to the state and to the people.

In large part, it is the combination of the “commerce” and “necessary and proper” clauses that have led many to conclude that the Constitution is a dead letter to our generation — that the battle was lost before most of us were born.  How profoundly sad.  Indeed, the Sunday morning pundits believe that the ObamaCare challenge is already lost.  Well, they may hope that it is lost, but I have a different view.

I have been in the trenches against ObamaCare since before it was enacted.  In late 2009 I wrote an article against the individual mandate for the Richmond Times Dispatch.  In January 2010, I authored the Virginia Healthcare Freedom Act that our attorney general, Ken Cuccinelli, used to file suit against the Obama administration.  On April 4, 2011, I filed an amicus brief in the Fourth Circuit to support that challenge to ObamaCare.  I explained this brief to the House of Delegates on April 4, 2011.  My wife and I attended oral argument, and we saw the case presented to three Democrat-appointed judges on the Fourth Circuit panel.  In their opinion, those judges impugned the integrity of those of us who were working against this law, and then decided that since the Commonwealth of Virginia was a mere state, it did not have standing to challenge the law.  Then I filed an amicus brief in the Supreme Court urging the Court to grant certiorari on November 3, 2011 — a petition that is still pending.

When the Supreme Court decided to hear the challenge from the Eleventh Circuit, on February 13, 2012, I filed yet another brief on the merits in that case.  In each of these briefs, where I was joined by other concerned individuals and organizations, we have urged the Court to re-examine the text of the Commerce Clause — and to ignore its flawed decisions in this area.

Why am I somewhat optimistic?  While the Constitution is my passion, learning the parliamentary and political skills to stop bad laws has been one of my main activities for the 21 years I have served in the Virginia General Assembly, and before that for six years as a congressional aide to three members of Congress.  To learn how power is abused, I studied history, including how FDR manipulated Congress to get the New Deal around the Court, and it is not a pretty picture.  My recent amicus brief presents this story to the Supreme Court in unvarnished fashion.

In a nutshell, frustrated by the Supreme Court’s decisions blocking many of his early New Deal initiatives, FDR launched a political attack on the court.  As explained in his March 1937 Fireside Chat, FDR’s Judicial Procedures Reform Bill of 1937 would add up to six additional justices to the Supreme Court.  He didn’t have to wait long for the Court to fold its hand.  In April 1937 Justice Owen Roberts became the “switch in time that saved the nine.”  And it was in the unprincipled cases that followed that the Court aided and abetted FDR’s unconstitutional revolution towards a federal government of unlimited powers.  Since then, in effect, the majority in Congress and the Court have sat as a standing Constitutional Convention in defiance of the will of the People, undermining the very nature of a written constitution.  Sometimes big cases lead to big decisions, and this may be the case that returns us to the original plan.

In its ObamaCare briefs, the government relies heavily on the properly ridiculed 1942 Supreme Court case of Wickard v. Filburn, which upheld a bureaucratic decision dictating the amount of wheat that a farmer grew for his family and his livestock, even though the wheat never traveled in or had any connection to interstate commerce.  This was not a decision reached on the legal merits.  Rather, it was the product of an unprecedented exercise of raw political power by President Roosevelt.

Shedding light on this dismal past may embarrass the Court into doing the right thing.

I hold out hope that if the Court focuses on how it was manipulated into its current jurisprudence, it just might be willing to re-examine whether it erred.

One of the great problems is that if the Supreme Court goes off-track long enough, those who agree with the policy result raise the defense of stare decisis — the legal principle by which courts follow the precedent of prior cases.  It is for this reason that lawyers who argue before the Supreme Court seem to discuss only rarely the original text of the Constitution, instead often analyzing Supreme Court decisions.  However, the Constitution is what the Founders said it was — not what the Court says it is.

But there are times when the Court recognizes that it went off-track, or allowed lower courts to do so, and chooses to return to the text of the Constitution.  We have seen two instances of this recently, where the country is better off because the Court re-examined precedent in light of the Constitutional text.

In the 2008 case of District of Columbia v. Heller, the Supreme Court re-examined the “prevailing wisdom” that the Second Amendment protected only a “collective right” which protected state Guards, and not a right that individuals enjoyed.  After an extensive textual and contextual analysis, the Court reached a decision consistent with the Founders, even if inconsistent with prior Court decisions.  In the Antoine Jones case in January 2012, the Supreme Court re-examined over 40 years of Supreme Court jurisprudence that transformed the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects” into a judicially invented right to privacy, and returned the Fourth Amendment to its property foundation.  These were brave, principled decisions.

Sam Walter Foss’s famous poem “The Calf-Path” illustrates from nature the utter folly of failing to re-examine periodically why we do what we do: “By one calf near three centuries dead.  They follow still his crooked way, And lose one hundred years a day, For thus such reverence is lent, To well-established precedent.

The Roberts Court has a demonstrated record of looking past prior decisions to the constitutional text.

So I have reasons to be hopeful that the Supreme Court of 2012 will refuse to follow that calf-path established in 1941 by a politically cowed Justice Owen Roberts, now five decades dead, and will re-examine the constitutional text, thereby forcing the federal government back to the limited role that our Founders wanted it to have.

Robert G. Marshall is a senior member of the Virginia House of Delegates, serving his 11th consecutive term.  He was the chief patron of the Virginia Healthcare Freedom Act and filed three amicus curiae briefs against ObamaCare in federal courts.  He is a candidate for the U.S. Senate from Virginia.  Follow him on Twitter @BobMarshall2012.

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