Don’t Believe the Democrats When They Invoke the Constitution

By Rob Schwarzwalder Published on May 15, 2019

Jerrold Nadler, the liberal Democrat who chairs the House Judiciary Committee, says America is in the midst of a “constitutional crisis.”  This is a wild overstatement. But what’s sort of endearing is Nadler’s sudden concern with the Constitution.

When the Left Cares About the Constitution

The left only cares about our charter text when it’s to their advantage. Consider Nancy Pelosi. During the Obamacare debate, one of the key issues was the bill’s “mandate.” It required, under penalty of heavy fines, every American to have health insurance.

A reporter asked Pelosi if this was constitutional. Her response? “Are you serious? Are you serious?” 

There are two ways to take this. One is that she is unconcerned with what the Constitution says. The other is that she is truly not aware of the limits it puts on the federal government.

The Speaker represents a vision of the Constitution her growing (and loud) liberal base loves. The dean of Berkeley law school explains it this way: “The Constitution was intentionally written in broad, open-ended language that rarely provides sufficient guidance for many of the issues before the Supreme Court,” writes Edwin Chemerinsky. “The meaning of phrases like ‘cruel and unusual punishment’ or ‘due process’ or ‘equal protection’ cannot be determined by the words of the text alone or the intent of its drafters, who wrote long ago for a vastly different world.” 

This is a great summary of what liberals believe. It’s also completely wrong.

The Meaning of the Constitution

The Constitution was not written broadly. The Constitution has defined meanings. We know this from James Madison’s journal of the debates about the document while it was being written. From the Federalist Papers. The dictionaries and law books of the time. The state debates about the Constitution.

From the fact that the drafters of the Constitution included a provision for its own amending. Why amend something that can just be reinterpreted at will?

We know it from the Tenth Amendment, which explicitly says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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And we know it by virtue of something incredibly obvious: the very fact we have a written text. The Founders wanted to define what the federal government could and could not do. Why? Because Britain did not have a written constitution. The result was the arbitrary rule of king and parliament. The American Revolution was fought so that liberties could not be seized whenever distant British rulers so declared. A written charter for the new nation was designed to prevent this.

We know exactly what the terms Chemerinsky cites meant to the Founders. He just doesn’t like those meanings. Why? Because if applied honestly, they would put a screeching halt to the liberal project of expanding the role of the federal government endlessly.

Et Tu, GOP?

At least the Republicans respect the Constitution, right? Most profess to love the Constitution. They talk about “originalism” and “textualism” a lot. But much too often, that loyalty goes out the window when they need to make hard choices.

In 2003, President Bush insisted that Congress enact a prescription drug benefit under Medicare. No one likes high drug prices. There’s no doubt that some drug companies charge way too much. But there’s no place in the Constitution that gives Uncle Sam the power to administer health care. Not Medicare, Medicaid, Obamacare, or whatever else.

Conservative Republicans in the House were tortured by this decision. That’s why then-Speaker Denny Hastert held the vote open for three hours instead of the usual 15 minutes. He twisted enough arms to get the bill passed by a one-vote margin.

Health care, along with education, public housing, Social Security, and a giant swath of what the federal government does should be given back to the states. Over a period of a few years, so as to not disrupt the benefits people have come to depend on. Yet Republicans keep funding all kinds of things the Constitution doesn’t allow because the people have gotten used to them.

Return to the Constitution

Size means power. A government that’s too powerful limits freedom and coerces people into doing its bidding. Just like the Obamacare mandate on health insurance. Or the Republican prescription drug benefit bill of 2003, which cost nearly $130 billion in 2016 alone. 

Too much government, and freedom contracts. Power is restless. It is never content unless it is exercised. Elites love telling the “masses” what’s good for them. Politicians like to “give” people various programs and policies — although they do so with other peoples’ money, of course.

Which brings us back to Jerrold Nadler. His sudden indignation at what he sees as a violation of the Constitution would be worth taking seriously if, in his many years in Congress, he’s ever before expressed any interest in constitutional governance. Instead, it makes me want to laugh. Or, to be honest, cry.

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