Give Me Liberty or Give Me ObamaCare

During the 2008 election campaign, I was struck by how Barack Obama would describe someone's heartrending personal story, then leap immediately to suggesting a federal government solution. The assumption in between was that whatever unhappiness there is in life is the responsibility of the federal government to remedy. John Kerry did the same thing in 2004 because that is the way liberal Democrats think.

But that is not our system of government. Ours is what we call a "limited government." It is limited by the security of each one of us in our individual rights. They are rights against the power of government. Our government is limited also as to its ends. Its powers are enumerated and therefore delineated. We have established our government to accomplish specific tasks, and we have enumerated those tasks in the Constitution. That brings me to the third way that our government is limited. It is limited by law. Those who govern us govern only under law, ultimately a fundamental law we call the Constitution. Those who make the law must themselves submit to the laws they make.

If you judge Democrats not by what they say but by what they do, you can see that they don't believe in any of these features of limited government. Why should the enlightened class be limited in any way? To subject The People's Party to limitations of any sort is an act of hostility toward the people themselves. At any rate, that is how communist parties have reasoned for almost a hundred years, and that appears to be the way liberal Democrats think. And Barack Obama is a turbo-liberal Democrat.

Consider his plans for health insurance reform, plans in which he is in harmonious alliance with the "liberal bulls" in Congress. The fact that the scheme is baldly unconstitutional gives them no pause whatsoever. The suggestion that it is unconstitutional just means that they have to find a constitutional rationalization of some sort. After all, these people have long ago stopped caring what the Constitution actually says. If it is a "living constitution," then the challenge to those living under it is not to conform their legislative wishes to the Constitution, but by clever rhetoric and legal reasoning to conform the Constitution to the legislative wishes of the day. This is very opposite of the rule of law and of limited government.

As to the ends of government, people like Barack Obama cannot think of anything the federal government should not be doing. If there is suffering in the world, then the government is the most effective and most trustworthy agent to be addressing it. The broader the government, the more egalitarian the solution will be, and so the federal government is always the instrument of choice, whether directly or indirectly through its control of state and local governments. This may be a kind-hearted sentiment, but it is not a noble sentiment because it does not respect people's liberty. Even if Obama and all those in political alliance with him on this were entirely public spirited in their intentions (which any sober adult should admit is unlikely), their reforms would establish a structure for a less high-minded generation of elected and unelected government officials to lord it over a prostrate and helpless American people.

Blind to these dangers, however, and convinced of the self-evident moral superiority of their understanding, Obama's Democrats have launched themselves into the restructuring our health care system--one sixth of the American economy--expecting that the only opposition will come from selfish corporate interests, the Republican party which is the tool of those interests, and whatever rural simpletons and Christian fanatics the Republicans can deceive.

But opposition is coming from honest lovers of liberty and of the rule of law. Two such patriots are David B. Rivkin and Lee A. Casey, both of whom served in the Justice Department under Presidents Reagan and Bush. In "Mandatory Insurance is Unconstitutional" (Wall Street Journal, Sept. 18, 2009), they make the case that it goes beyond the powers of the federal government to force people to buy something they don't wish to buy. "Congress...cannot regulate simply because it sees a problem to be fixed." Since the Progressive era began almost a hundred years ago, government activists have justified most federal regulatory powers on the interstate commerce clause. The federal government can act to regulate interstate commerce (Article I, section 8), but it cannot punish you simply for sitting in your living room not buying health insurance. Rivkin and Casey take you through the history, the current health care reform proposals, and the bearing of the Constitution on it all. It's good read, and you are sure to look very intelligent and well informed to your friends for having read it.

Because Obama's Democrats don't care about the spirit of our system of government which is the spirit of liberty, they will look for a way around that restriction. Because there are others in the country who love liberty and the Constitution that supports it, they will fight him to the highest court in the land.

Limited Government and the Spirit of Liberty

In his spirited rejoinder to my "Thoughtful Conservatism" post, Harold alerts us to this very exciting development in American politics. There is a possible growing movement among state governments to reassert their status as sovereign states, and not just administrative units for implementing federal programs and taking care of some small stuff when the feds let them.

Here is an excerpt from "Palin to feds: Alaska is sovereign state: Constitutional rights reasserted in growing resistance to Washington" (WorldNet Daily, July 20, 2009) by Chelsea Schilling:

Gov. Sarah Palin has signed a joint resolution declaring Alaska's sovereignty under the Tenth Amendment to the Constitution – and now 36 other states have introduced similar resolutions as part of a growing resistance to the federal government.

Just weeks before she plans to step down from her position as Alaska governor, Palin signed House Joint Resolution 27, sponsored by state Rep. Mike Kelly on July 10, according to a Tenth Amendment Center report. The resolution "claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States."

Alaska's House passed HJR 27 by a vote of 37-0, and the Senate passed it by a vote of 40-0.

According to the report, the joint resolution does not carry with it the force of law, but supporters say it is a significant move toward getting their message out to other lawmakers, the media and grassroots movements.

Alaska's resolution states: "Be it resolved that the Alaska State Legislature hereby claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. Be it further resolved that this resolution serves as Notice and Demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers."

While seven states – Tennessee, Idaho, North Dakota, South Dakota, Oklahoma, Alaska and Louisiana – have had both houses of their legislatures pass similar decrees, Alaska Gov. Palin and Tennessee Gov. Phil Bredesen are currently the only governors to have signed their states' sovereignty resolutions.

The Tenth Amendment states that: "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It has been largely ignored over the last 200 years, most glaringly in the last fifty to a hundred years when the federal government has been driving its hands into every aspect of American life.

Justice Harry Blackmun announced the irrelevancy of state sovereignty, and thus also of federalism and the Tenth Amendment, in Garcia v. San Antonio Metropolitan Transit Authority (1985). The Court faced the task of deciding the relationship between the scope federal power through its constitutional authority to regulate interstate commerce (the "commerce clause") and the sovereignty of the states.

With this decision, the Court, ignoring the principle of stare decisis (ironically it is the author of Roe v. Wade who writes the opinion), overturns National League of Cities v. Usery (1976) in which the Court held, "The essence of our federal system is that, within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal."

Justice Lewis Powell states his dissent quite forcefully:

Whatever effect the Court's decision may have in weakening the application of stare decisis, it is likely to be less important than what the Court has done to the Constitution itself. A unique feature of the United States is the federal system of government guaranteed by the Constitution and implicit in the very name of our country. Despite some genuflecting in the Court's opinion to the concept of federalism, today's decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause.

In her dissent, Justice Sandra Day O'Connor objects: "If federalism so conceived and so carefully cultivated by the Framers of our Constitution is to remain meaningful, this Court cannot abdicate its constitutional responsibility to oversee the Federal Government's compliance with its duty to respect the legitimate interests of the States." She sounds this alarm: "there is now a real risk that Congress will gradually erase the diffusion of power between State and Nation on which the Framers based their faith in the efficiency and vitality of our Republic."

She concludes:

The problems of federalism in an integrated national economy are capable of more responsible resolution than holding that the States as States retain no status apart from that which Congress chooses to let them retain. The proper resolution, I suggest, lies in weighing state autonomy as a factor in the balance when interpreting the means by which Congress can exercise its authority on the States as States. ...[T]he autonomy of a State is an essential component of federalism. If state autonomy is ignored in assessing the means by which Congress regulates matters affecting commerce, then federalism becomes irrelevant simply because the set of activities remaining beyond the reach of such a commerce power "may well be negligible."

In United States v. Lopez (1995), Chief Justice William Rehnquist, writing for a 5-4 majority, put the breaks on the Court's erasure of this fundamental principle of our system of republican liberty.

To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

America is a resilient nation. Just when it seems that she is laying down in the graveyard of civilizations, she draws new life from her Christian heritage and founding principles. Remember 1979? It would be just like this nation to rediscover and reassert the principle of limited government just when the pitch dark shadow of Leviathan's triumph seems to be suffocating liberty in the political equivalent of nuclear winter.

Now, can we also get up the courage to impeach Supreme Court justices who regard international law as authoritative in their decision-making?

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
- John Philpot Curran (1750–1817).

McCain's Legacy Precedes Him

Does the US Constitution mean anything anymore? The Founders' wisdom displayed in its construction appears an increasingly thin barrier between us and the sort of soft despotism of which DeTocqueville warned us. Encouragingly, no new breaches have yet occurred under Chief Justice Roberts, and several existing ones have been repaired. Yet there is abroad in this land of ours an impulse to throw it off, as if it actually were, in the immortal words of William Jefferson Clinton to his Euro interlocutors, "that damned constitution", an 18th century institutional relic still impeding the bright future the left has in mind for us all. One such inconvenience for liberals-in-hurry is the First Amendment's prohibition of government restrictions on free political speech.

It is a measure of the pathology of the times that this bedrock principle, once enshrined as sacrosanct, has been dealt a significant blow by the tag-teaming effort of all three branches of government in passing into law the McCain-Feingold atrocity, somehow sidestepping the actual words, meaning, and intent of the constitution, which to many startled and alarmed observers thought impossible to misinterpret--does "no" mean "no" only in the context of sexual harrassment? John McCain, George Bush, and the five Supremes whose pretzel logic delivered that serious blow to our first amendment privileges, especially deserve the opprobrium, even the hot anger, of all liberty-loving citizens.

George Will points to the kind of brush fires springing up across the land, typified by the outrage in my home state of Colorado. Residents of Parker North, a conclave of some 200 houses, were surprised to find that their public objections to being annexed by the larger town of Parker ran afoul of McCain Feingold. Under the umbrella and instruction of the federal government in its expressed intent to regulate political speech despite the constitution's clear language denying that authority, many state and local officials, mimicking their constitutional elders, are driving their various regulatory trucks through the hole blasted in the constitution's walls by his eminence John McCain. Thanks, Senator.

The residents of Parker North are being assisted in a federal lawsuit against their local commissars by the Institute for Justice. Perhaps this important suit will make it to the attention of the Supremes, and with their new majority will remedy this egregious, and dangerous, deprivation of liberty. Read the Will piece here,

http://www.realclearpolitics.com/articles/2008/04/the_parker_six_beat_mccainism.html

and consider donating to the Institute for Justice here: http://www.ij.org/.--they are doing the Lord's work here and in many areas of constitutional incursion by governments intent on taking from YOU the liberties the fundamental law of the land guarantees to US citizens.