First, read Julian Sanchez on the health care mandate and the Commerce Clause.
Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?
If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)
If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.
I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.
I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.
Think about what it means. We have two parties who have rigged the game to ensure that someone from their ranks wins every election, nearly every time. And every 10 years, they gerrymander the districts so as few of us as possible even get that choice. All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.