Friday, December 17, 2010

Igor--It's Alive. It's Alive !

The obnoxious concept of a "living constitution" has manifested itself in the recent Democratic reaction to criticism of the Obama socialized medicine plan. It has become more patronizing and dismissive since the most recent appellate court ruling that portions of Obamacare are unconstitutional.

With each successful overreaching of Congress and the executive, the leftists and bleeding-hearts have gotten closer and closer to gutting limits on federal power entirely. Suggestions that there is any such thing as a limitation on federal power are treated as if someone had said the moon is made of green cheese. How dare we conservatives attempt to stop the march of progressivism by citing an out-of-date, dusty old document?

The legal concept of a "living constitution" is tantamount to an architect advocating "living foundations." The cement will be made semi-viscous so that the building above can be rearranged to suit the current popular style. But any sane person knows that without a solid foundation, the building above will collapse. The Constitution is that concrete foundation, and the Republic is the building. I do not include Democrats, liberals, leftists and "living constitutionalists" in the category of sane persons.

How many of us remember the day Nancy Pelosi was asked if Obamacare might violate the Constitution and therefore not be valid law. The idea that Congress can do anything it damned well pleases is so deep that her automatic reaction was "are you serious?" The living constitution allows exactly what Pelosi thinks it allows, but we don't have a living consitution. We have a bedrock foundational document alterable only by the people of the various states. It is not meant, ever, to be ignored, stretched, tortured or altered by any other means. That includes legislators, presidents, and courts.

So when U. S. District Judge Henry Hudson ruled that Obamacare violated the words and meaning of the Constitution, the "Progressive" reaction was essentially "so what?" Judge Hudson found that the interstate commerce clause has limitations, and one of those limitations on Congress is regulating a "non-activity." The non-activity is a person who dares not to buy health insurance. "You don't buy it, we'll make you buy it, and we may slap you with some bigtime civil and criminal sanctions as well." Our illustrious Attorney General Eric Holder patronized the judge with his offhand comment "the states' reading of the Commerce Clause was rejected 80 years ago."

Holder is of course referring to the failing and nearly-bankrupt Social Security System. "We saw similar challenges to laws that created Social Security and established new civil rights protections [the latter actually being only 46 years ago]. Those challenges ultimately failed, and so will this one." Holder fails (purposely) to distinguish between a federally-mandated tax to provide a guaranteed retirement income and legislation implementing law already contained in the Constitution--literally. Progressives are notorious for comparing their most recent socialist statist government schemes to civil rights legislation. It's their normal tactic of substituting law and clear thinking with emotional comparisons to slavery and racial discrimination (ask the gay marriage advocates).

The only reason Social Security is constitutional is that a cowed and increasingly liberal Supreme Court said it was. There are clear distinctions in the nature of Social Security and Obamacare that are fodder for many other full articles. Suffice it to say here that this Supreme Court is neither as easily cowed by an ignorant lawyer-president nor lacking in the good sense to say "bad law is bad law, no matter how old it is." An obvious question for Holder is that since the high court held discrimination, and later racial segregation, perfectly constitutional from 1789 through 1954, would he like to reverse Brown v. Board of Education because the previous state of the law existed for 165 years and Brown has existed for a mere 65?

What is important to remember about the "progressive" concept surrounding Obamacare is that they can't make distinctions between mandatory health care, Social Security and civil rights. For the left, the distinctions don't matter because the "living constitution" allows the three branches to conspire with each other to do whatever they think is best for America and Americans. If it means an occasional suppression of freedom of speech or religion, or an occasional unreasonable search and seizure, or an occasional oppressive tax and control of one-sixth of the entire economy, no matter. Congress is charged by the living Constitution to do whatever it deems necessary regardless of the original words, original intent or original meaning of the document. In other words, you are wrong if you think the Constitution is a document limiting government. The living constitution is about protecting general welfare by any governmental means necessary and any expansion of government that assists in that goal.

The key vote on the current Court is probably Justice Anthony Kennedy. After all, he was the one who wrote an opinion which held the Constitution grants "a right to define one's own concept of existence." That not law--that's judicial Zen Buddhism. You know the sound of two hands clapping. But what is the sound of one hand clapping? Still, he currently seems less likely to issue airy-fairy philosophical treatises posing as judicial opinions than previously.

The states are merely an impediment to good federal law enforcement. Those pesky 50 competing jurisdictions merely muddy the waters and confuse citizens, so why waste time with worrying about what they think? And that is exactly how Holder and Obama look at it. It is a given that if people need medical care, it is the sole and exclusive province of the federal government to "regulate" that interstate commerce. Any activity that affects any citizen of any state who might get confused about the law in another state must be transferred to the regulatory power of the federal government. How dare certain states and one federal judge question that wisdom? It's just incomprehensible to the left.

So just remember: A state citizen not doing something (like buying health insurance) has a cumulative effect on interstate commerce by virtue of causing non-activity which produces non-commerce which is subject to the Interstate [non-]Commerce Clause. If you've got that straight, you're ready for quantum physics.

12 comments:

Tennessee Jed said...

stare decisis unless it is bad law. Then overturn. I am hoping we are on the cusp of returning the intended balance between individual, states, and federal.

T_Rav said...

The idea of a living constitution always makes me snort. I had the privilege of listening to Justice Scalia speak a few years ago, and when discussing the debate between the "living" and "dead" viewpoints--also known as contextualism and textualism, respectively--he remarked that he constantly gets approached nowadays by the brightest minds graduating from law school, who invariably wrinkle their noses and ask, perplexed, "When did you become a textualist?" His response, of course, is always "Since I actually read the thing." Amazing.

Tehachapi Tom said...

Hawk
This is one of the best and succinct descriptions I've seen of the what and how of our Constitution.

I must cut and paste it for my home schooling daughter to use with the education of my grandchildren.

The analogy using a building and it's foundation brings a vivid image of the parable about the building of your house on a foundation of sand. If memory serves me correctly wasn't the result a collapse?

Let us hope some sense prevails and our country does not collapse.
Our Constitution is and must remain the rock upon which our country rests.

I want those grandchildren to enjoy the opportunities and lifestyle that I have been fortunate enough to enjoy.

LawHawkRFD said...

Tennessee: Yep! Unfortunately, they don't teach Latin as a core subject in school anymore. Otherwise, both sides of the issue would know stare decisis means "let the decision stand," not "let the law be paralyzed."

LawHawkRFD said...

T_Rav: I love that quote. Scalia, being a brilliant jurist, read the whole document and realized that it was simple, but not easy. I've mentioned before that I was a gun-control proponent (not anti-gun) until I actually had to deal with the issue. After reading the Second Amendment, the applicable portions of the Federalist Papers and other sources about the debates at the time of its adoption, my view had changed 180 degrees. I had "actually read the thing." Too bad the Democrats and other liberals haven't bothered to do that.

LawHawkRFD said...

Tehachapi Tom. The parallel to the Biblical admonition not to build your house upon the sand has often occurred to me whenever I've tried to explain to a liberal (or some poor, confused law student) that the Constitution is that foundation of rock.

My favorite example of completely misunderstanding the foundational nature of the Constitution was when presidential candidate (and former Massachusetts attorney general) John Kerry said "If I am elected president, I will interpret the Constitution according to prevailing law." Typical "progressive." That's exactly backwards, and it's the reason we have suffered from so many horrendous decisions that simply fly in the face of the clear meaning of the foundational document.

AndrewPrice said...

The whole concept of a living document is obscene. It's a contract, a compact, a deal that establishes the rules under which our government is run. If the government can change those rules at will, then they are not rules, they are pretend rules meant to make us think that our government has not become an all-power creature. Moreover, liberals are as usual wrong about the need for the Constitution to morph to meet changing conditions -- it has mechanisms that allow it to be changed. . . they just find those too hard to use because they can't convince the rest of us to make those changes -- which is the exact reason they shouldn't be allowed to make changes.

LawHawkRFD said...

Andrew: There you go again with that pesky logic. What is a contract or a Constitution compared to a government doing the right thing, no matter what? LOL

rlaWTX said...

I took ConLaw in college (Govt major) with one of the most conservative classes they'd had to deal with (and the profs took it well, regardless of being 60 Berkley/UCLA grads). I wish I knew then what I know now! We were a tad rowdy then (being skeptical - great def the other day BTW), but now...!!!! Most of us have gotten more conservative and more vocal and a lot more educated...

oh and I liked "not 'let the law be paralyzed.'"

Andrew - the paper: sub-par. too much info, too little time (my fault). hopefully will help lead to a above par thesis in a couple of years, though. Thanks!!!

AndrewPrice said...

rlaWTX, Thanks! I thought it was a good definition!

Sorry to hear about your paper. Hopefully your thesis will be super!

StanH said...

I’ll keep it simple, “kick ass Lawhawk!” That was great! You quite nicely obliterated, the living Constitution horse crap. Think of the vile audacity of someone as vacuous as a Nancy Pelosi, questioning the brilliance of the Founders, by responding , “are you serious?” Think of the absurd comparison of a James Madison, or a Thomas Jefferson too SanFran Nan…barf. And like Andrew said, the Constitution is a binding contract, and like any contract should be treated as such. I really do despise our current crop of Washington weasels. Great read Lawhawk.

LawHawkRFD said...

Stan: Thanks. What can I say? San Fran Nan learned her Constitution from Harry Reid. That's like the blind leading the stupid.

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