Not what the Founding Fathers intended

I found this informative overview and editorial, The Constitutional Moment, of Judge Vinson’s ObamaCare decision in today’s Wall Street Journal.

I was especially pleased to see that Judge Vinson opened with this quotation from Federalist No. 51, written by James Madison:

‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

And here are some key paragraphs from the editorial:

Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the fourth Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.

The courts affirmed this limited and narrow understanding until the New Deal, when Congress began to regulate harum-scarum and the Supreme Court inflated the clause into a general license for anything a majority happened to favor.

Yet even in its most elastic interpretations, the Commerce Clause applied only to “clear and inarguable activity,” Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has “no impact whatsoever” on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would “create a completely centralized government.”

Regarding the argument that inactivity (not purchasing health insurance) is activity:

It is “not hyperbolizing to suggest that Congress could do almost anything it wanted,” he [Vinson] writes. “Surely this is not what the Founding Fathers could have intended.”

Regarding the argument that the Constitution’s necessary and proper clause justifies the mandate, even if the Commerce clause does not:

He writes that this clause “is not an independent source of federal power” and “would vitiate the enumerated powers principle.”

I have several thoughts about the decision.

First, all civics classes across the country should be studying this decision to demonstrate how our government was intended to work, with separation of powers and checks and balances.  This is a clear example of the judicial branch checking the power of the legislative and executive branches of government.

Second, it highlights how important the mindsets of judges are.   It’s not a stretch to believe that all judges will not agree with with Vinson’s decision.  We’ll see this when the case hits the Supreme Court.  It will be interesting to read the deciding and dissenting opinions — no matter how it turns out.

Third, I hope the Wall Street Journal is correct that this is a Constitutional moment.  For the past 80 years or so, government power has crept beyond its charter as a result of a groupthink shared by members of the legislative, executive and judicial branches.

With this mindset, the limit on government power wasn’t set by the Constitution, as it should be.

The question wasn’t what government was empowered to do.  The question was whether there appeared to be good intentions and a reasonable-sounding greater good rationale for doing it.

Those intentions usually sounded something like, “this will help the poor” or “this is for the children”.  And if you questioned whether the government was empowered to do such things or whether the program actually achieved its intended objectives, you were dismissed as being against good things (when in reality, you were for doing good things more effectively).

If the Supreme Court backs Vinson’s decision, I hope this will restore some balance in the powers of government and will encourage folks who would like to change the scope of government power to follow the process laid out by the Founding Fathers in Article V of the Constitution: Amendment.

Finally, I once had the good intention/greater good belief of government power.   Two insights caused me to change my mind.

1. This limit on government seems to work fine when the people you agree with are in charge and doesn’t work so well when the people you disagree with are in charge.  I can’t always count on the people I agree with being in charge.

2. I realized that much of the greater good arguments are false.

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