As we continue to sit around and wait for Justice Kennedy for make up his mind on Obamacare’s Individual Mandate, after Dear Leader has threatened the Supreme Court and accused any justices so foolish as to oppose his grand plan of “judicial activism,” I thought I’d take the time to post some typically unenlightened and primitive thoughts regarding the judicial activism, the Constitution, and the unevolved 18th-century knuckledraggers who framed it.
When debating with liberals and similarly highly-evolved progressive-minded folks on constitutional issues, including the HHS mandate I’ve been ranting about lately, I’m often told essentially that the federal government can do whatever the hell it wants in such matters because there is no right specifically written in the constitution (in the case of the HHS mandate) for religious employers to not pay insurance that covers their employee’s contraceptives/abortifacients.
While I actually do find this suddenly newfound concern for the letter of the U.S. Constitution by liberals touching, as usual, they have it back-asswards. (In constitutional law as practiced or understood by most liberals, nebulous and ethereal entities as the “Emanations of the Penumbra”- which means literally an “emission from a shadow” – take supreme precedence over that unimportant text that’s actually clearly written down in Constitution in black and white. A lot of the same bleeding hearts who insist that such unwritten Emanations hidden deep within the Penumbra as the absolute right to abortion or gay marriage are beyond any question or doubt will insist just as vehemently that such statements as “the right of the people to keep and bear arms shall not be infringed” are some kind of arcane literary metaphors not to be taken literally, and which us rubes without advanced law degrees could never hope to understand. Of course, the rest of us unenlightened types smell the distinct emanation of bullshit.)
Today’s illiberal “liberals” regard the powers of the federal government as being virtually limitless, constrained constitutionally only where it is very explicitly spelled out that the federal government cannot do some very particular thing. Though, of course, in the vast majority of those cases, they can confidently trust that the SCOTUS justices will handily pull some Emanation out of the Penumbra granting the federal government some long-dormant power heretofore unrecognized to do whatever it is that “needs to be done.”
This is why liberals were aghast at the possibility that the Supreme Court might not in fact give a green card to Obamacare’s Individual Mandate. Suddenly, Obama and other government leftists are calling into question the rulings of the all-powerful Black-Robed Ones, of whose decisions, Nancy Pelosi once said were “almost as if God had spoken.”
On the other hand, for the “liberal” statist, the lowly citizenry of this land have no rights beyond those explicitly stated and spelled out (that is, again, unless an Emanation of the Penumbra is discovered nullifying it). Since the Constitution doesn’t spell out word-for-word the right of those who run Catholic institutions to choose health care plans which don’t violate their deeply-held moral beliefs, then it simply must not exist. Of course, if the proposed mandate in question involved a more politically correct religion – say, a mandate demanding that all Muslim institutions serve pork – no doubt the bleeding hearts would be singing a quite different tune.
However, James Madison, the man rightly regarded as “The Father of the Constitution,” saw things quite differently. A he wrote in The Federalist 45 (January 1788):
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
In The Federalist 39, he writes
In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
This, of course, is the basis of the Tenth Amendment of the Constitution which states plainly: “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.”
Of course, this part of the Bill of Rights has been neglected for decades, if not centuries, and many liberals contend that successive amendments have somehow rendered this inconvenient amendment obsolete.
Of course, discussing the views of Madison or any of the other framers of the Constitution regarding their intent with “liberal” statists is usually a futile exercise, for typically at this point they will start driveling something about how the high-tech world today is so much more “complex” than those primitive knuckle-dragging apes in their powdered wigs could have conceived, and that therefore the constitutional principles of yore can no longer apply. As though the horseless carriage, YouTube, and Twitter somehow render the principles of freedom and limited government obsolete. Of course, this is nonsense. Freedom remains freedom and tyranny , tyranny, just as much in the 21st century as in the 18th.