What Do Conservatives Want From the Constitution?

Washington Post editorial writer Ezra Klein raises a good question: “I'm very curious to know what the GOP -- or the tea partyers they're presumably pandering to -- think will happen when every piece of legislation requires ‘a statement from its sponsor outlining where in the Constitution Congress is empowered to enact such legislation.’”



Too bad Klein is so misguided.  He cites Obamacare’s “individual mandate” as an example.  Section 1501 of the Patient Protection and Affordable Care Act (i.e., Obamacare) states that Congress’ authority to regulate the insurance industry is granted by the Constitution by the Commerce Clause (Article I, Section 8, Clause 3). The drafters of the individual mandate attempt to further support their argument by citing the case of U.S. v. South-Eastern Underwriters Ass'n in which the Supreme Court of the United States held that the insurance industry is an area of commerce that can be regulated by Congress. Unfortunately what the authors of the individual mandate, and Ezra Klein, fail to realize is that the Commerce Clause and  the Court’s decision in South-Eastern only go so far!


Traditionally, Congress’ power under the commerce clause only reaches so far as to prevent harm to citizens through the use of police power. A classic example of this is the case of Hammer v. Dagenhart circa 1918. In that case the Supreme Court held that Congress could enact a federal law to restrict the interstate shipment of goods if the goods were produced using child labor.  The harm that congress sought to prevent was the exploitation of children and this was held valid in light of then existing (and current) social values.


South-Eastern falls under a different line of reasoning. The court held in that case that Congress could regulate the insurance industry, not to prevent a harm to a specific class of people, but rather to prevent destructive business practices that favored citizens of one state while burdening citizens of another state. This is the “stream of commerce” theory.


Neither the police power theory, nor the stream of commerce theory authorize Congress to mandate that citizens purchase health insurance.  The police power theory authorizes congress to abate existing harms. The stream of commerce theory and South-Eastern allow congress to imposed regulations to provide a level playing field amongst the states. Neither theory allows Congress to strip citizens of liberty and autonomy.


This is what Klein fails to understand and he is asking the wrong question. The question is not “What do conservatives want from the Constitution?” The question is “Where do THEY get the nerve?”  We don’t think that a statement of constitutionality is going to stop the big government types from introducing, and even passing, legislation...we just want to see from where on Earth they get the audacity to trample over every inch of our Constitution! 



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