The Constitution Lives to Fight Another Day

February 05, 2011
By Peter Heck

Like a phoenix rising from the ashes, the Constitution of the United States lives to fight another day.  With as bloodied and beaten as her carefully articulated prohibitions against the overreach of governmental power had become following years of abuse, America's great charter found a champion in Judge C. Roger Vinson and his stinging rebuke of ObamaCare.  If upheld by the appellate courts (which must be considered quite plausible, if not likely), Vinson's opinion has not only turned back an unprecedented attempt at expanding the power of the federal government far beyond its intended scope, but has also provided a catalyst for a return to constitutional government in the United States.

That is no small feat given where we were just 24 months ago when Barack Obama was delivering his inaugural address and verbally shaking the foundation of constitutionalism by frightfully articulating a governing philosophy far removed from the author of that Constitution, James Madison, who wrote in Federalist 41, "Is the aggregate power of the general government greater than ought to have been vested in it.  This is the first question."  In what should have been a grave foreshadowing of what was to come, Obama dismissed Madison's counsel and decreed a brave new approach, "The question we ask today is not whether our government is too big or too small, but whether it works."

Years of historical revisionism and benign neglect in our civics and government classrooms allowed that profound dichotomy between the Father of the Constitution and the man we had just hired to be its guardian slip by unnoticed.  Only when Obama appeared poised to break a campaign promise and sign into law a healthcare bill that would compel every American to purchase government-approved health insurance did the dwindling flames of what George Washington called the "sacred fire of liberty" begin to rekindle.

The embers began to glow in Congressional town hall meetings, where lawmakers like Pete Stark (D-CA) preposterously answered constituents that, "The federal government, yes, can do most anything in this country."  The smoke began billowing when concerned citizens who were informing themselves on what was happening in Washington were patronizingly told by representatives like Joe Donnelly (D-IN) to, "turn off the TV and listen to a Frank Sinatra record."  And dismissive attitudes about the constitutionality of their actions, like that coming from Speaker of the House Nancy Pelosi (D-CA) when she responded to such a challenge by flippantly scoffing, "Are you serious?  Are you serious?" firmly ignited a movement dedicated to restoring the lost principles of federalism. 

Enter Judge Vinson, who rightly interpreting his first obligation, set aside all peripheral questions about the uninsured, ObamaCare's potential for success, the debt it will bring or not bring, or the intent of its authors.  In a statement that reflected the wisdom expressed in Federalist 41, Vinson confirmed, "this case...is not really about our health care system at all.  It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."  Somewhere, upon hearing those words, James Madison was smiling.

Whether the federal government had the authority to take on such monstrous power, after all, was to be the "first question."  Yet, quite tellingly, it had become the one question that the supporters of ObamaCare avoided at all costs.  Well, perhaps that's not fair.  Then House Judiciary Committee Chairman, John Conyers (D-MI) did make an effort to address it, explaining to a reporter that Congress got their authority to force Americans to purchase health insurance, "Under several clauses, the Good and Welfare Clause and a couple others." 

Though there is no such thing as the "Good and Welfare Clause," we can assume Conyers was meaning the "General Welfare" clause.  But if so, it appears he bears the same antipathy towards James Madison that President Obama does.  For it was Madison who cautioned, "With respect to the two words general welfare, to take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."  Given that Madison was one of those creators, Conyers might want to defer to him on this one.

Perhaps wanting to avoid that embarrassment, most ObamaCare defenders (including the administration itself) have attempted to excuse their unconstitutional overreach on the basis of the Commerce Clause of the Constitution, which allows Congress to regulate goods that are exchanged across state lines.  Of course, ObamaCare is an entirely different animal.  It first compels a passive person to engage in commerce, just so Congress can regulate them.

Vinson properly excoriated this rational, reasoning, "If [Congress] has the power to compel an otherwise passive individual into a commercial transaction with a third party...it is not hyperbolizing to suggest that Congress could do almost anything it wanted."  That might please Pete Stark, but it doesn't meet Constitutional muster, as explained (once again) by the document's primary author James Madison: "If Congress can do whatever in their discretion can be done by money...the Government is no longer a limited one, possessing enumerated powers, but an indefinite one."

This was the spirit of Judge Vinson's ruling, which is what makes it so significant.  It is a landmark decision for individual liberty and limited government, that very well may prove to be the ultimate undoing of the ObamaCare nightmare.

Peter is a public high school government teacher and radio talk show host in central Indiana. Email peter@peterheck.com or visit www.peterheck.com. 

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