The Fate of the Constitution

As people wait for the Court’s decision on ObamaCare, it strikes me that there is something fundamentally wrong with this entire process.  The whole county is awaiting a decision from the Supreme Court which will have a major impact, not only on health care, but the election and possibly the future of the country.  This is simply wrong. The court should not matter that much.  

It does matter because we, as a country, have largely cut our moorings, and it is now left to the court to decide which way we will go.  The country as founded in 1776, and organized into a government in 1789, was a limited republic, where power rested with the people.  The Constitution and the Bill of Right both enumerated and limited what the Federal Government was allowed to do. The Constitution began with “We the people.”

Understood in this light, the ObamaCare decision is actually a very easy one. The commerce clause limits the federal government to regulating interstate commerce. If not buying something is deemed to be an act, not only of commerce, but of interstate commerce, then the entire principle of the Constitution, one of enumerated powers, is null and void.  There would be no practical or perhaps even theoretical limit on what the federal government could do.  This is why the oral arguments went so badly for the defenders of the ObamaCare.  When it comes to the meaning and intent of the Constitution this should be a no brainer, an easy 9-0 ruling of unconstitutional, where the only real question was how such a law even got passed so as to come before the court.

But rather than a 9-0 ruling of unconstitutional, it will at best be a split decision and the law might even be upheld.   The primary reason for this is twofold.  The first is that there is a significant group of people who fundamentally reject the government as defined in the Constitution.  Rather than a bottom up republic where the most power is vested in the people and the least with the government most distant from the people, the federal government; these people want a top down government. They want a government where power is centralized at the federal level.  They want a federal government not only powerful enough, but one that actually does control every aspect of our lives.

Now this, in and of itself, would not be all that bad. After all, the Constitution vested power with the people and contains a provision that allows for the Constitution to be changed.  But that brings me to the second problem which is that those who want to change the system do not want to bother with such things as arguing for their positions in the democratic process. Thus for decades they have argued for a new understanding of the Constitution, that of a living document, where the power to change the document does not rest with the people but with judges.  Rather than the messy process of submitting an amendment, where they have to convince the country, they have sought change by first convincing judges that they can reinterpret this “living document,” and then asking them to do so.  

Thus the ruling on Obamacare will not be 9-0.   It will be a split between those who accept the living document view and want Obamacare, or at least a more powerful federal government; those who accept the Constitution as written; and those who are in the middle and could go either way.

When it comes to the fate of Obamacare, in the long term, it really does not matter how the court rules.   The election in November will be far more important to the future of health care in America.  If Obama wins, the country will move towards single payer, the only real question will be how fast.  If Romney wins Obamacare will be repealed, even if it is upheld by the Court.  But the Court’s ruling will have a major impact on the role of government and thus the Constitution.  Will the original idea of a limited government of enumerated powers get a reprieve, or will it be dealt a death blow.   Will we remain a government of “We the people?”  Or will we take yet another step towards a government control by “We the Judges?”