Perhaps one of the most significant differences between conservatives and liberals is their stark divergence of views as it relates to the Constitution.
Where most conservatives seek to apply the original intent and meaning behind the words, liberals adhere to the idea that the Constitution in its original form is inadequate in meeting the demands of modern society and must consequently be open to a vastly more flexible interpretation.
One of the leading representatives of the more liberal view is Erwin Chemerinsky, the founding Dean of the University of California, Irvine School of Law. In a recent interview with Reason TV he made two statements that summed up his side rather well.
“I am always skeptical that we can know the original intent behind a Constitutional provision,” Chemerinsky said. “I am also skeptical that even if we knew, it should be binding on us today.”
The second statement is the most telling and best illustrates how despite all the evidence to the contrary, government officials can argue that something as ludicrous as mandating the purchase of health insurance is a power within the bounds of the federal government. Such a position has nothing to do with honestly interpreting the Constitution, but instead figuring out ways to make the words say what the reader wants them to say.
The better question to the advocates of the liberal view is not whether this or that policy is unconstitutional, but whether ultimately anything is unconstitutional.
When pressed on the limits of federal power, the Democratic Rep. Peter Stark from California answered, “The federal government can, yes, do most anything in this country.”
The answer to how authoritarians such as these have slithered their way around the Constitution comes from a complete perversion of the Commerce Clause, which states that, “(The Congress shall have Power) To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”
Chemerinsky reads this clause as granting Congress the power to, “regulate all aspects of the economy.”
Interestingly enough, Americans wary of a strong central government during the time of ratification were reassured by James Madison, father of the Constitution that, “The powers delegated by the proposed Constitution to the federal government are few and defined”, which seems so utterly incompatible with the modern blank-check interpretation.
What Chemerinsky conveniently fails to understand, is that the purpose of the Commerce Clause was to prevent trade barriers between states so that one state could not impose a tariff on the goods of another state. The real fear at the time was that trade barriers would cause a rift between the states and, as history tells us, such trade restrictions were often one of the main causes of war. It was never intended to be limited merely by the imagination of legislators.
In an even more worrisome revelation, during the Obama appointee Elena Kagan’s Supreme Court confirmation hearing, Republican Sen. Tom Coburn of Oklahoma gave her a hypothetical law to test her understanding of the Commerce Clause which stated, “Americans have to eat three vegetables and three fruits every day.”
Kagan’s response was, “It sounds like a dumb law.”
Coburn then pressed her more directly asking, “Do we have the power to tell people what to have to eat every day?”
Kagan hesitated and subsequently failed to answer the question.
If this continual and deliberate discarding of the Constitution continues, then we are effectively no longer a government of laws but of men, where the average citizen cannot simply read the law and seek to abide by it, but must rely on the whims of a judge who may be disinterested in interpreting the law as it stands, but rather, as he prefers it to be.
Such a system has the potential to be infinitely more oppressive than that of British rule. Did our founders spend blood and treasure fighting tyranny only so that their descendents would become slaves voluntarily?
The only option is to elect representatives who ask not whether a policy works, but first if it’s Constitutional and promise to appoint originalist judges who will interpret the Constitution as it was originally intended.