Abusing the Constitution: health care and the case of the Commerce Clause

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Public Secrets)

Warren Crocker Herrick says:

August 26, 2010 at 6:14 pm

This Chereminsky guy is a creep and a moron. Who decided he was a scholar? “It’s not a freedom to not have medical care”(?) Shouldn’t the dean of a law school be defending The Constitution, not attacking it and tearing it apart?

New Reader (PaBear) says:

August 26, 2010 at 6:42 pm

It is, of course, a systematic attack by the left. Listen to the news everyday recently and it is one far left position after another being implanted and codified into ‘regulations’ we, the people, must obey. These are growing in the frequency and are in direct opposition of the ‘oversight orders’ given by the public in every poll even the MSM use. Hmmmmmmm……

One might almost suspect that they (the Left) are racing to get as much of their agenda, both overt and covert, implemented before the elections.

Watch for more wildly unpopular positions and laws to be enacted rapidly over the next 2 months.

The only ‘hope’ for ‘change’ is a complete turnover in both houses, not just another divided majority. Repeal is only possible with an overwhelming majority.

Those of us with more miles on our treads might be reminded of the (pre)1994 elections when Clinton’s houses got trounced. The parallels of what the Left was ramming down on American Society then and now are eerie.

Back then the issues were primarily focused on the Homosexuals and Criminal’s Rights agendas, Health Care and general Anti-Americanism.

Today it is the Illegal Immigrants and Muslim agendas, Health Care and general Anti-Americanism.

The only thing different between then and now is the Date. Same Hate America First message.

Good Luck to us….

Brontefan says:

August 27, 2010 at 12:30 am

The most outrageous behavior is that the Left readily quotes the Constitution when it suits their purpose and walks all over it when it doesn’t! On one side, I hear people arguing FOR the mosque at ground zero quoting the Constitutionality of it. Then in the same breath, they will shout the rights of government to impose ObamaCare on the American public without a constitutional amendment–which I believe is the only real way to introduce socialized medicine—while Obama himself spouts off about the Constitution having only negative laws. It was written to protect the the folks from intrusive government, which is something Dems don’t seem to grasp! And because Dems are totally unable or unwilling to argue or discuss points of fact, they resort to sob stories and name calling. Since Obama became president, I have been called so many hateful names–merely because I do not agree with his Marxist agenda.

Carlos says:

August 27, 2010 at 9:30 am

Most of the twentieth century was spent on “modifying” what the Constitution really meant, and the biggest basis for such “modification” was the Commerce clause.

Hence, most judicial decisions relating to constitutionality were wrong because the primary basis was wrong.

And most social and economic laws were unconstitutional for the same reason.

And it was all in preparation for our “Constitutional-Scholar-in-Chief.