Thursday, January 6, 2011

Reading the Constitution.....a Rant

Yesterday, the House of Representatives read the Constitution out loud. Good for them. It was an opportunity for all of us to recognize that it makes sense, before we talk about the Constitution, to actually go and read it. If you haven't read the constitution, I urge you to do so. Read it slowly. Read it carefully. Don't read it with the idea that you are going to find in it an endorsement of your own views of what should be in the constitution, or what you have heard on Fox TV or MSNBC from people who frankly don't have a clue what's in there. Read it with an open mind. You might be surprised at what you find. The pundits on TV are passing out drivel about the Constitution.

My favorite link to the Constitution is the "interactive constitution." You can get their by clicking on this link. Half the things that people claim to find in the constitution is pure bunk. What most people mean when they say a law is unconstitutional is that they think that the law is a bad idea. The founders primarily envisioned that laws would be passed by the representatives elected by the people. The primary protection in the constitution for bad laws is not in the bill of rights, or any other amendment. It is in the requirement that representatives and Senators must stand for re-election.

Most of the argument about federal powers relates to an express power contained in the Article I Section 8 relating to the power to regulate commerce. The actual language of the Constitution provides that Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes..." Recently, it has been common for folks who haven't a clue what the Constitution really means to suggest that the expansion of the commerce clause power was a liberal trick to invade our freedoms. Nothing could be further than the truth.

The expansion of the federal commerce clause power was begun by the federalists--the people who actually wrote the Constitution and who caused it to be passed. They were interested in assuring that the national government would have sufficient power to make sure that the economy of the United States would not become the prisoner of individual state governments with provincial concerns. During the latter part of the 19th century and early part of the 20th century, under a largely Republican appointed Supreme Court, the Supreme Court cemented this interpretation of the commerce clause recognizing that it was a national economic engine designed to assure that individual states did not, with local laws, prevent the growth and proper function of the national economy.

People who claim that this use of the commerce clause represents a recent abuse, or that it interferes with freedom in ways not envisioned by the founders, are spreading pure bunk based on ideology. Local and fragmented regulation of health insurance, and the lack of national coherence in that regulation, is one of the major threats to the economic survival of the nation. Solving that problem is fully consistent with one of the primary reasons that the founders created the constitution in the first place. The proper solution of this national problem is a political subject, to be resolved by debate and by the decisions of the elected representatives of the people.

For about a century, the primary issue in constitutional law has been whether the constitution would be used to defeat democracy by allowing nine life tenure political appointees, to overturn the will of elected representatives of the people. Every time that we argue that a law is unconstitutional because we disagree with it, we are taking a step further away from democracy.

If you don't like the federal health insurance law, vote for congressmen and Senators who agree with you. If you want to return to the system that existed before passage, then in the next election cycle, you will have that opportunity, to restore a national health system where sick people lose their health coverage and cannot buy new coverage. Where we have the freedom to go without insurance, and then when we get really sick, to go to the emergency room and force the hospital to take care of us. That is your choice. The constitution allows our elected representatives to restore the dysfunctional, costly, abusive system that we previously had, the most costly health system in the civilized world if they choose. The Constitution allows our elected representatives to try something different, because that is what we are, a representative democracy.

But when you say that the federal health insurance law is unconstitutional, you are frankly, just making it up. The national constitution was written by a group of some of the most wealthy men in the nation. One of their key goals was to create a system of government that had the power to enact laws that regulated commerce in ways that would assure a stable national economy. They gave the national government this power on purpose, advisedly, because they believed that the old confederacy had a dysfunctional economic system. Of course, they didn't have a clue back then what health care was going to entail in the 21st century. In those days, there were no antibiotics. They didn't know that bacteria caused disease. They hadn't a clue what a virus was, and women regularly died in childbirth. When people's limbs got infected, they died of gangrene, or had their limbs amputated. Its silly, really, to try to understand what those men would think about the national power to regulate the national health industry, completely ignorant as they were that one day, we would be able to stop a person's heart from beating while we performed an operation, and then start it up again.

My thoughts on this topic are echoed by a recent interview with Supreme Court Justice Scalia in comments about how to deal with gender equality issues:

You do not need the Constitution to reflect the wishes of the current society......You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
The founders created a magnificent engine to solve unforeseen problems. That engine was not the Supreme Court. That engine was called representative democracy. The founders believed that the elected representatives of the people would interpret the commerce clause, doing what was "necessary and proper" to implement that power in accordance with current wisdom. They believed that the primary check on that power was the ballot box, not nine old men (or women) who would never again in their life stand for election.

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