I agree with the Wall Street Journal that the Supreme Court’s case deciding the constitutionality of the Patient Protection and Affordable Care Act (with oral arguments commencing today) is among the most important and consequential in our lifetime. “The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years,” according to the Journal. “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.”
But while President Obama is pushing the boundaries of federal power to the breaking point, his actions can also be seen as the logical extension of the progressive movement, what with its collectivist impulses, its disregard for the separation of powers, and its basic contempt for the American Constitution. The Constitution, after all, is (among other things) a check on the power of the state. Which means that James Madison’s handiwork is an impediment to the designs of progressives, who want to cede ever greater authority to the federal government.
Rather than publicly argue that we ought to jettison the Constitution, those on the left have settled on a strategy to fundamentally reinterpret it. This project travels under the banner of a “living Constitution.” What this means in reality is that the Constitution has no fixed meaning; it is as malleable as hot wax, to the point that new rights can be invented and old rights can be jettisoned based on judges’ predilections, ideologies, passions, and will; on the season of the year, the day of the week, the time of the day. It really doesn’t matter, since the Constitution is viewed as a means to a (political) end. It is a rootless document. Everything is up for grabs.
In that sense, what liberal judges and justices do is something of a charade. They will simply make the Constitution conform to their pre-ordained conclusions (and so abortion is deemed to be a constitutional right, the death penalty is cruel and unusual punishment, the Commerce Clause allows for an individual health care mandate, et cetera). But for a variety of reasons, they cannot be fully candid about how low their regard for the Constitution is. And so they often go through contortions that are intellectually unserious and, if the stakes were less, comical.
The Constitution is an “evolving” document, we’re told by those on the left, conforming to “standards of decency that mark the progress of a maturing society.” But who gets to decide which direction the evolution goes? Who is the arbiter of enlightenment, the adjudicator of decent standards, the fount of all human wisdom? Give yourself a gold star if you answered “a Supreme Court Justice.” Because surely Sonia Sotomayor and Stephen Breyer know more about standards of decency than — well, than whom exactly?
As Justice Scalia has written, “As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.”
For progressives, that may be precisely the point.
The Constitution is protection from tyranny. The only reason to label it a living document is to remove that protection by making it malleable to those who wish to impose their will on the people but cannot as the Constitution stands. In other words, tyrants.
"…abortion is deemed to be a constitutional right, the death penalty is cruel and unusual punishment, the Commerce Clause allows for an individual health care mandate…". Why cast all of these elements of controversy together as if it's all or nothing? Furthermore, the constitution must be flexible with time and changes in society and technology and philosophy, etc. As brilliant as James Madison was, he could not and did not foresee everything that has occurred for hundreds of years. Frankly, I am for abortion rights, and I do not deem the death penalty to be cruel etc., and while I am opposed to Obamacare, I do believe that the Federal government should have the power to require the purchase of health insurance very much as the states can require automobile liability insurance.
A small point on apples and oranges. The states don't require everyone get automobile liability insurance — they require all car owners to get automobile liability insurance on their cars. I do not own a car. I ride a bicycle. I do not have car insurance … and nobody cares. I don't have to pay any fines. The police ignore me. And on the couple of occassions I've borrowed my niece's car to get somewhere too far away, I'm covered on her insurance, which she's required to have on her car and does. BUT, to get out of the requirement to buy health insurance, I would have to get rid of … my life, wouldn't I? Not the same — car … life.
I'm afraid that your dissembling of auto liability insurance and the 'mandate' is not very convincing. I wish that it were, because the Supreme Court as of this date may go either way on this. It is not particularly clear. Since I, personally, do not like the Health plan, I would have preferred that the plaintiffs in this case had a more convincing argument than you and they present. The essence of my comment was that the author's argument melding 'abortion rights, death penalty opponents, and the mandate' all in the same pot, was as genuinely 'apples, oranges, and bananas' as you can get.
My thoughts on yours weren't an (or the) argument why the health mandate is unconstitutional, only my view on why I didn't/don't think you can equate the health care and auto insurance mandates. I do agree the case before the court can go either way — and think that it will not hinge on the legal arguments particularly, but, unfortunately for the serious matter of what the Constitution is supposed to mean anymore, the conservatives will line up on one side, the socialists will line up on the other and that's how the constitutionality will be determined. The legal arguments and the Constitution mean nothing.
It started with Oliver Wendell Holmes. Look at Progressive attitudes and, in the end, you will find Pragmatism at its base. Sadly, many conservatives also cling (inconsistently) to Dewey's destructive philosophy. It's an American disease that crosses political boundaries.