By Bryan Fischer
Follow me on Twitter: @BryanJFischer, on Facebook at “Focal Point”
The Constitution is just like the Bible. It either means what its authors intended it to mean, or it can mean anything your fevered imagination wants it to. The main judicial challenge facing the American people right now is very simple: will we be guided in public policy by the Constitution the Founders created or the one that has been mangled beyond recognition by activist judges?
The tussle over ObamaCare crystallizes this perfectly. Obama’s lawyers argue that the Commerce Clause in the Constitution gives the central government unlimited power to order us at gunpoint to buy anything it wants us to.
This, of course, is tyranny cloaking itself in constitutional dress. The Constitution, it turns out, can also be the last refuge of a scoundrel.
Sane people, objective people, who can read the Constitution and the writings of the Founders say no, that twisted reading of the Commerce Clause is 180 degrees out from what the Founders intended.
Back when the Senate was vetting Elana Kagan for a seat on the Supreme Court, Sen. Tom Coburn asked Elana Kagan a simple straightforward question: can the government, under the guise of the Commerce Clause, pass a law requiring Americans to eat three vegetables a day? The video of this exchange, which you can see here, justifiably went viral.
Ms. Kagan’s response is one of stupefied, stunned silence. A long awkward pause follows the question. Her reaction was so blank that it would be uncharitable to our antlered friends in the forest to describe her facial expression as that of a deer caught in the headlights.
She could not bring herself to say that Congress has no authority to dictate the dietary intake of every American. Apparently she believes that while government has no place in our bedrooms, it can squat in our refrigerators and cupboards 24 hours a day. Do you see the much-vaunted right to privacy here anywhere? I sure don’t.
The Commerce Clause has been twisted and mutilated out of all recognition to justify any and all expressions of the tyranny of the central government over every aspect of our lives. Under ObamaCare, we are no longer citizens. We are serfs in a medieval fiefdom.
James Madison, who, as you may recall, is the Father of the Constitution and therefore may be presumed to have more right to speak to this issue than the mind-numbed Ms. Kagan, made it clear in Federalist Paper Number 42 that the purpose of the Commerce Clause was to prevent states from imposing import and export taxes on goods shipped across their borders from neighboring states.
Merchants in the days of the founding, in order to get their goods to metropolitan centers or to shipping ports, would often have to transport them across state lines. States had taken to charging import duties on these goods when they came into their jurisdiction and slapping export duties on them when they left.
Remember that in the Declaration, the thirteen colonies proclaimed that from July 4, 1776 onward they were by right “FREE AND INDEPENDENT STATES” and therefore, just as all sovereign states do, would have the right to impose import and export tariffs on other states.
Madison and the Founders recognized the threat this posed to harmony among the States of the newly created Union. Said Madison, if this practice were allowed to continue, “it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.” So the Commerce Clause was added to prevent this pernicious practice.
Madison makes this explicit. “A very material object of this power was the relief of the States which import and export through others States, from the improper contributions levied on them by the latter.”
Let’s be clear: the Commerce Clause, as framed by the Founders, gives Congress no authority other than to ban the imposition of import and export fees by the various States. That’s it.
The taxing power granted by the people of the United States to the central government extends only to its authorized powers. The only legitimate taxes the central government can collect are the ones necessary to fulfill its responsibilities as enumerated in Article I Section 8. You can read that section forwards, backwards, upside down, from right to left, even read it in Sanskrit, and you will find absolutely no authorization for the central government to take over the nation’s health care system. It ain’t in there anywhere. ObamaCare has zero constitutional authority. None, zip, nada. In a just world this monstrosity would be struck down so fast it’d make your eyes water.
It is perhaps unsurprising to find that it is now possible, thanks to former Dean Elana Kagan, to graduate from Harvard Law School without ever once taking a class in constitutional law. Dean Kagan made a class in international law obligatory, but a class in constitutional law is still just an elective.
Maybe that’s why graduates of Harvard Law, and even former deans, appear to know more about the constitution of Zimbabwe than they do about the constitution of the United States.
(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)