The number of things with which I agree with President Obama is fairly small. One thing I do agree with him on however is his characterization of the Constitution. Back in 2001 as he was lamenting the failure of the Warren Court to bring about “redistributive change”, he stated “…the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf…” While the negative liberties characterization doesn’t make any sense, at the core about what the Constitution does, he is right.
As the President and Congress prepare to enact what is possibly the most unconstitutional law ever passed, it may be of some value to look at why exactly President Obama is right on the Constitution and wrong on ObamaCare.
Much to President Obama’s chagrin, the Constitution was never intended as a contract laying out what the government could, should or would do for the citizens. It is not a contract amongst the rich against the poor, the native born against the immigrant, the educated against the illiterate. On the contrary, it is a contract amongst citizens whereby everyone has equal rights and it is specifically intended to guard against the tyranny of the majority. While the definition of citizenship has evolved over time, the equality amongst citizens has not.
The Constitution was written the way it was by design. Indeed, it was the product of great effort and much research, both historical and contemporary. Although many statesmen had a hand in the development of the Constitution, foremost amongst them was James Madison, who is sometimes called the Father of the Constitution. In preparation for the Constitutional Convention in Philadelphia, Madison spent a great deal of the spring and summer of 1786 at his home in Montpelier studying governments throughout history, everything from the Amphictyonic confederacy of ancient Greece to the European confederacies of the 15th century, all while reflecting on the infirmaries of the American Articles of Confederation. Those infirmaries were legion: The central government could not levy sufficient taxes to pay its creditors, states fought amongst one another and majorities tyrannized minorities. Fundamentally the United States at that point was far more a collection of strong independent states than a true nation. Allowed to continue the country would likely have splintered into a chaos reminiscent of Europe.
Fundamental to Madison’s idea of government was the recognition that men are human, and as such are prone to many vices. He even put his notes on the subject on paper in the "Vices of the Political System of the United States”. Basically he recognized that left to their own devices, men would split into factions, and, unless insulated from such, eventually a government would devolve into a tyranny of the majority.
The resulting Constitution provides the government with limited and specific powers. The 10th Amendment states explicitly that those powers not delegated to the federal government reside with the states or the people. Power is separated not only between three branches, but the terms and manner of election of the various officeholders are as well. Fundamentally it was written to provide a foundation for organizing society where citizens could maximize their pursuit of happiness and the exercise of their liberties while limiting government action to only those areas the citizens specifically allowed. Their deliberate, clear language has been increasingly twisted over the last century, but we may now be at a tipping point beyond which there can be no turning back. The progressive movement has been seeking to turn the United States into a socialist Nirvana for most of the last 100 years. From Teddy Roosevelt to Woodrow Wilson to FDR to LBJ, the drums have beaten steadily towards this cliff. Although once they utilized the Constitution for their purposes, (the 18th Amendment – Prohibition) typically their successes (sic) have been the result of court rulings (Miranda) or federal legislation (The New Deal or Great Society programs). Slowly, inch by inch, the progressives have moved the federal government into areas where it was never intended to go. The Founding Fathers would never recognize as America a country where the federal government dictated the fundamentals of elementary education, limited the kinds of transportation citizens could have, restricted a citizen’s ability to finance political speech, provided welfare to 10% of the citizenry or imposed draconian and confiscatory taxes at will.
The tipping point we find ourselves at has to do with the fundamental nature of the Constitution and the relationship between the government and the people. With government, once a program has been put into place, it almost immediately creates a cadre of vested interests and is almost impossible to kill.
The point beyond which there may be no return is a simple one. With ObamaCare, for the first time ever, citizens will be forced under the threat of prison to purchase a good, whether they want it or not. Throughout 212 years of our history, a citizen could wake up every morning and for the most part go about their day without being forced to do anything they did not want to do. There are obvious situational exceptions such as the Draft or eminent domain, but for the most part, the citizenry could choose where and when they would interact with the government. ObamaCare’s requirement that citizens purchase healthcare is the straw that will break the proverbial camel’s back. Once this travesty is in place, there are simply no more limits.
One can make the argument that the world of 2009 is different than the world of 1787 and that is indeed true. We have communications, transportation, entertainment and food options that were not even conceived of 200 years ago. What was conceived of then, and what has survived (somewhat intact) thus far, has been the fundamental framework governing the relationship between the citizens and the government. That framework has survived longer than any other written constitution in the world; it has survived a wrenching war between signatories; it has survived assassinations of presidents, the corruption of legislators and the voting of a largely uninformed public. To put this in perspective, in the 212 years of the American Constitution, the enlightened French have blazed through eight different constitutions.
With the passage of ObamaCare, the United States may be passing the point of no return on its downward journey to becoming a middling country, shorn of the sheen and substance of Exceptionalism. It will become but another average player in a United Nations of the World where the rhetorical goal of government is to ensure that everyone has their equal share, where no one ever wants for anything, where everyone lives in perfect harmony. This is not just because the basic elements of the legislation are sufficiently onerous as to cause America to spiral into a third world country, which it is, but rather by unconstitutionally forcing citizens to purchase a “good” in order to retain their liberty, it explicitly elevates the whims of the federal government above the rights of the citizens. Now that police power of the state can be used to force citizens to pay for health care, how long will it be before those same powers are used to force citizens to pay for food that is provided at the direction of the government, to pay for clothing provided at the design of the government, to pay for transportation or leisure activities provided or approved by the government?
Madison and the Founding Fathers understood that man is prone to anger, passion, faction and hubris and that neither the Constitution nor any government could change that. What the Constitution and its resulting government could do however was provide a framework where free men could live together as equals as they pursued their individual notions of happiness and basked in the exercise of their liberties. Once again I agree with President Obama, this time when he suggested we are standing “at the precipice of achievement that's eluded Congresses, presidents for generations”. Indeed we are, although I would replace the word achievement with travesty. He believes that with ObamaCare America will parachute into a land of milk and honey. He’s wrong. There is no parachute, there is no milk and honey and there will be no soft landing. A mirage of rhetoric, fables and lies hide the gritty reality of the soon to be rusted hulk of American enterprise that for two centuries was an engine that drove the advancement of the human condition. That train spent 212 years charging over the horizon, into the great unknown, into a universe of possibilities on the rails of a U.S. Constitution that let free men create and innovate and build a better world. With ObamaCare we will see the removal of those rails and with them the essence of American Exceptionalism. As the engine that has provided so much to so many careens, buckles and lurches forward without the constraints of Madison’s Constitution, we can no doubt expect that the vices for which it was constructed to contain will begin to rear their ugly heads. Alas, it is said that the road to Hell is paved with good intentions. That may be where we are headed, but despite the rhetoric, there are no good intentions involved here.