Category Archives: US Constitution

Assailing the Supreme Court –

Its not about “American values…”, but about “Liberals’ values (as in “Left”)
After last week’s Supreme Court argument on ObamaCare, the political left seems to be suffering a nervous breakdown. Only a week ago, the liberal consensus was that the federal mandate to buy insurance couldn’t possibly be overturned. Now as panic sets in, the left has taken to mau-mauing the Justices by saying that if they overturn the mandate they’ll be acting like political partisans. The High Court’s very “legitimacy” will be in question, as one editorial put it—a view repeated across the liberal commentariat.

This criticism is itself political lobbying, as is clear from the fact that it mostly spares Anthony Kennedy, the likeliest swing vote. Liberals still hope Justice Kennedy will uphold all of the law, even as they audition the mauling he’ll get if he joins Antonin Scalia, Samuel Alito and Clarence Thomas in the ninth level of judicial hell. Chief Justice John Roberts is also being lectured that the case will “define” his career, though in six years he has already established a record as a careful consensus builder on the Court.

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you’ll show you hate sick people—as if the Court’s job is to determine health-care policy.

This is the left’s echo of Newt Gingrich’s threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

No doubt the Justices will ignore this transparent attempt at political intimidation, but someone should defend them against the claim that overturning the law would be “judicial activism.” It’s more accurate to say that failing to overturn the mandate would be dodging their duty to uphold core constitutional principles.

Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

The classic example, acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time, is Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in Griswold in 1965 from the Constitution’s “penumbras” and “emanations.” Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since.

The ObamaCare case is very different, as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I, Section 8.

The Court has often overturned laws that exceeded those powers, including laws that it said exceeded the authority of the Commerce Clause (Lopez in 1995, for example, and Morrison in 2000). Hundreds of other precedents have extolled the value of the constitution’s “dual sovereignty” system—the division of state and federal power. As recently as the U.S. v. Bond case last year, Justice Kennedy wrote that “federalism protects the liberty of the individual from arbitrary power.”

Far from seeking an activist ruling, the ObamaCare plaintiffs aren’t asking the Court to overturn even a single Commerce Clause precedent.

In that sense the Court can overturn the mandate and still be far more modest than it was in the gay rights case of Lawrence v. Texas (2003) that overturned Bowers v. Hardwick (1986). And more modest than it was in barring the juvenile death penalty in Roper v. Simmons (2005), which overturned Stanford v. Kentucky (1989). The legal left celebrated both of those reversals of relatively recent Supreme Court precedents.

At stake in ObamaCare is whether the High Court will ignore 225 years of constitutional understanding to ratify the federal government’s claim that it can force individual Americans to buy an insurance product—to engage in commerce—so it can then regulate all of the health-care market. The activism charge is a political canard intended to obscure these grave issues and intimidate the Court, and the Justices and the public would do well not to take it seriously.

Review & Outlook: Assailing the Supreme Court –


Liberty and ObamaCare

First sentence captures it.
Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. “Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned,” the memo notes, rather than “the individual responsibility piece of the law and the legal precedence [sic].” Those nonpolitical details are merely what “lawyers will be talking about.”

The White House is even organizing demonstrations during the proceedings, including a “‘prayerful witness’ encircling the Supreme Court.” The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.

The Supreme Court will not be ruling about matters of partisan conviction, or the President’s re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.


The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.

These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was “an addition which few oppose, and from which no apprehensions are entertained.” The Father of the Constitution also noted that the powers of the states are “numerous and infinite” while the federal government’s are “few and defined.”

That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today. A famous 1942 ruling, Wickard v. Filburn, held that Congress could regulate growing wheat for personal consumption because in the aggregate such farming would affect interstate wheat prices. The Court reaffirmed that precedent as recently as 2005, in Gonzales v. Raich, regarding homegrown marijuana.

The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do. In 1995, in Lopez, it gave the clause more definition by striking down a Congressional ban on carrying guns near schools, which didn’t rise to the level of influencing interstate commerce. It did the same in 2000, in Morrison, about a federal violence against women statute.

A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.

The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.


Confronted with these concerns, the Administration has echoed Nancy Pelosi when she was asked if the individual mandate was constitutional: “Are you serious?” The political class, the Administration says, would never abuse police powers to create the proverbial broccoli mandate or force people to buy a U.S.-made car.

But who could have predicted that the government would pass a health plan mandate that is opposed by two of three voters? The argument is self-refuting, and it shows why upholding the rule of law and defending the structural checks and balances of the separation of powers is more vital than ever.

Another Administration fallback is the Constitution’s Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they’re part of an otherwise proper scheme. This clause isn’t some ticket to justify inherently unconstitutional actions.

In this context, the Administration says the individual mandate is necessary so that the Affordable Care Act’s other regulations “work.” Those regulations make insurance more expensive. So the younger and healthier must buy insurance that they may not need or want to cross-subsidize the older and sicker who are likely to need costly care. But that doesn’t make the other regulations more “effective.” The individual mandate is meant to offset their intended financial effects.


Some good-faith critics have also warned that overturning the law would amount to conservative “judicial activism,” saying that the dispute is only political. This is reductive reasoning. Laws obey the Constitution or they don’t. The courts ought to defer to the will of lawmakers who pass bills and the Presidents who sign them, except when those bills violate the founding document.

As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they’d be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution’s separation of powers is meant to protect.

Meanwhile, some on the right are treating this case as a libertarian seminar and rooting for the end of the New Deal precedents. But the Court need not abridge stare decisis and the plaintiffs are not asking it to do so. The Great Depression farmer in Wickard, Roscoe Filburn, was prohibited from growing wheat, and that ban, however unwise, could be reinstated today. Even during the New Deal the government never claimed that nonconsumers of wheat were affecting interstate wheat prices, or contemplated forcing everyone to buy wheat in order to do so.

The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his Lopez concurrence. The “federal balance,” he wrote, “is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far.”


The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.

The Obama Administration and its allies are already planning to attack the Court’s credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law’s unpopularity with the public.

The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.

Review & Outlook: Liberty and ObamaCare –


Its The Integrity, Stupid

McIntosh – taking it back!
An old acquaintance of mine, a passionate progressive, gave away the game in a recent conversation when he said, contemptuously, “Your people (by which he meant the Tea Party) are idiots for fetishizing the Constitution. Everybody knows that it’s just an artifact.” A stunning proposition and stated with such refreshing candor. Does the Constitution still matter? Time Magazine asked that question in a recent cover story featuring a half-shredded copy of our national charter. Cat’s out of the bag?

The Time story had consequences. Will history record it as the provocation, the spark that lit a fuse, of a kind of new American revolution? It moved Federalist Society founder/Bradley Foundation Genius Award winner, and former Congressman, David McIntosh into a primary election to unseat Republican Old Bull Dan Burton, in Indiana. What matters is: why… and how?

Two races are going to matter in 2012. One is, of course, the race for the presidency. But the president only can navigate in the political space defined by Congress. The other, and more important, race is the struggle for control of the national legislature. Is it going to be politics as usual? Or is it going to be an extension of the 2010 Tea Party Patriot-inflected populist struggle to constrain the powers of the ruling elite and re-assert the representative nature of government.

McIntosh, while an unflinching conservative, is featuring a populist, rather than conservative, theme: “send me as your messenger to ‘take our message, our voices, the news, that the people are back in charge to every corridor and back room in Washington.’” He seems to be challenging the incumbent not as bad but as a remnant, almost regal, of a past, now irrelevant, political epoch: that of the Imperial Congress. That era’s over.

McIntosh features a neglected icon, the Oath of Office, in his stump speech.  “When you sent me to Congress last time, I took a sacred oath under the Capital Dome and inside every courthouse in my District:

‘I, David McIntosh, do solemnly swear that I will support and defend the Constitution of the United States of America against all enemies foreign and domestic; that I will bear true faith and allegiance to the same…. So help me God.’

That oath to support and defend our great Constitution is the first and most important duty of our elected officials. Because it is the Constitution that guarantees our freedoms.

McIntosh then gets very specific. What does it mean to support and defend the Constitution? The Constitution allocates powers and protects certain fundamental rights. McIntosh enumerates some of the rights now under assault which he is, by taking the Oath of Office, swearing to defend.

Free speech. Proto-fascist progressive groups are trying to impose censorship under the weird theory that corporations are not entitled to free speech. (The first Amendment, “Congress shall make no law … abridging freedom of speech….” is a plenary prohibition on Congress without an exception for corporations.) Freedom of assembly? How dare Nancy Pelosi call citizens peaceably assembling to petition their government for the redress of grievances a “mob?” The right to not be deprived of life, liberty and property without due process of law? How dare the Congress not protect the lives of unborn persons, how dare it vote to take over our healthcare system, bail out their Wall Street cronies with our money, tell us what kind of light bulbs we can buy, tell us whom to hire, shutter our farms, mines and factories? A pro-growth economic plan: the Constitution calls for a gold standard.

This rap is not your typical conservative rhetoric. It is a new political language, emerging from the Tea Party: constitutional populism. Does the Constitution give the government power to act? If not, don’t. The Constitution protects a citizen’s rights? Then stop trampling them!

But that was just McIntosh’s table ante. He amps it up by an order of magnitude. He administers the oath right back to his listeners — creating an “Oath of Office” for the most ancient and noble office in a Republic: Citizen.

“Please, whether you support my candidacy or not, stop now and take the oath with me.

‘I do solemnly swear that I will support and defend the Constitution of the United States of America against all enemies foreign and domestic; and that I will well and faithfully discharge the duties of a citizen.  So help me God.’

And that I will well and faithfully discharge the duties of a citizen, so help me God.

People being prompted by candidates (and officials) to discharge the duties of a citizen … rather than depending on, or getting soaked or bossed by, the government? This is game changing. This is the heart of the Tea Party Patriots’ message: the power, and duty, of the citizens over the government.

Memo to Time: the Constitution matters. As radical as is McIntosh actually taking the Constitution seriously, as radical as is McIntosh taking seriously his oath to defend it; making the demand that the people rise to support and defend the Constitution of the United States of America is an act of far more radical integrity.

We are beset by myriad problems.  For these myriad problems there is one, and only one, solution.  Not the government, the people. Us.

It’s the integrity, stupid.

Radical: Its The Integrity, Stupid – Forbes.


Religion and the Cult of Tolerance

Socialism and the Left have no place or tolerance for religion.


Earlier this summer, the chief rabbi for Great Britain warned about a new intolerance being imposed in the name of tolerance.

“I share a real concern that the attempt to impose the current prevailing template of equality and discrimination on religious organizations is an erosion of religious liberty,” Lord Sacks told a House of Commons committee in June. “We are beginning to move back to where we came in in the 17th century—a whole lot of people on the Mayflower leaving to find religious freedom elsewhere.”

Though not as pronounced on this side of the Atlantic [USA and Canada], we can see the same trend that so worries Lord Sacks. Here too the imposition comes in the guise of nondiscrimination laws and codes. Here too the result is the same: Faith organizations are told whom they must employ and what they must assent to, or face being shoved off the public square.

The latest example is a case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which the Supreme Court has just agreed to hear. It stems out of a dispute involving a teacher who was replaced at a very small school when she became ill and absent from work. When the teacher threatened to take her complaint to the EEOC, she was sacked.

School leaders say that taking disputes outside the community violates church teaching. Their argument didn’t fly at the Sixth Circuit Court of Appeals. Now the Becket Fund for Religious Liberty, a sort of American Civil Liberties Union for people of faith, has taken up the cause.

“The Becket Fund is involved in this case because it’s not just about one little Lutheran school in suburban Detroit,” says Fund attorney Eric Rassbach. “It’s about the ability of people of all faiths to work out their relationship with God and one another without the government looking over their shoulder.

Indeed. That helps explain why the many briefs filed in support of Hosanna-Tabor include one jointly authored by the Union of Orthodox Jewish Congregations of America, the Catholic bishops, the presiding bishop of the Episcopal Church, and the Church of Jesus Christ of Latter-Day Saints (Mormons).

At the core of their concern is just this: the politically correct rewriting of the First Amendment. Post-1791, what made America’s religious freedom truly radical was not simply that it allowed people to worship (or not to worship) as they saw fit. The radical part was the guarantee it gave to corporate freedoms: to hold property together, to own newspapers, to run schools, to open hospitals and clinics, etc.

That understanding is now up for grabs. Last week, Kentucky Gov. Steve Beshear said approval for a local merger that would create a new Catholic hospital system will depend on maintaining a “public mission”—by which he means the performance of procedures, such as sterilization, at odds with church teaching.  [Since when does the state have the right to mandate the ‘mission’ of a religion?]

In San Francisco, opponents of circumcision recently attempted to outlaw it via state ballot. The California State University system has been found within its legal rights to deem a Christian fraternity and sorority unfit for recognition. Meanwhile, the National Labor Relations Board declared that two Catholic colleges are not in fact Catholic.

These are not cases of people trying to impose their beliefs on the rest of us. Instead they involve the question whether faith communities are free to live their own beliefs in their own institutions. Somehow the more “tolerant” we become, the more difficult that becomes.

In the debates over same-sex marriage, for example, the question is often asked of opponents: What can it possibly mean to you if two people of the same sex have their commitment to each other recognized as marriage? We’re now finding out. To give but one example, in Washington, D.C., it means that Catholic Charities no longer qualifies to do adoptions and foster care because it will not place children with or extend health benefits to gay couples.

So much for live and let live.

The radical uniqueness of what our Founding Fathers bequeathed us becomes more vivid when you set it against contrasting nations. In China, for example, you will find any number of churches holding worship services on Sunday. It would, however, be a huge mistake to think that China has anything close to freedom of religion.

To the contrary, governments such as China’s fully appreciate that opening the public square to organized faith groups has consequences for government control. After Tiananmen, Chinese officials told one another: Look what happened in Poland.

During a 1785 debate in the Virginia legislature over state subsidies for Christian teachers, the future author of the First Amendment, James Madison, opposed that measure as state coercion. His alternative was giving all religions free exercise, which he said would add a “lustre to our country.” When it comes to how we treat religion, 21st-century America is, of course, nowhere near China. The question is how far we’ve moved from Madison.

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McGurn: Religion and the Cult of Tolerance –