Commentary Magazine

Topic: U.S. Constitution

A Gun-Control Proposal that Is Doomed from the Start

04.05.2013 - 4:15 PM

The New York Times carries an op-ed today on gun control that will disappoint readers of every political stripe. The headline, “Rewrite the Second Amendment,” is tantalizingly provocative; unfortunately, the rest of the column fails to cash the check.

For anyone following the gun control debate with a strong opinion on the issue, at first glance it appears to finally be the op-ed we’ve all been waiting for. Democrats who don’t much care for the right to bear arms or the general fealty to constitutional doctrine–and they are legion–but don’t have the guts to say so will be expecting the author, University of Texas professor Zachary Elkins, to speak for them. Republicans who wish to paint their antagonists as radical gun-grabbers–and they are legion–will be expecting Elkins to finally put flesh on the straw man. The common ground they are most likely to find, however, is in jointly panning the op-ed for overpromising.

Elkins begins by describing the current political impasse over gun control in the wake of the Newtown massacre. He then seems to set us up for the punchline when he writes: “It is actually quite unusual for gun rights to be included in a constitution.”

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Liberal Second-Guessing Won’t Make ObamaCare Constitutional

06.24.2012 - 2:56 PM

With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

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Will Broccoli Preserve American Liberty?

06.14.2012 - 2:07 PM

If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

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Health Insurance Mandate Now, Forced Loans Tomorrow?

03.25.2012 - 1:10 PM

The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.

In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)

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