Freedom Line Blog

And I don’t know if I like it.  Usually, the younger, more effete version of John McCain likes to flash his maverick status all over controversial domestic policies by siding with Democrats on cap-and-trade, immigration reform, and civilian trials for (some) terrorists.  Today, though, he reminds America that, yes, he is still a Republican.

In a blinding moment of clarity, the other Senator from South Carolina concisely – and correctly – identified the proper route for Ninth Circuit judicial nominee Goodwin Liu.

“I’m in the camp that you can be an active Democrat … and still sit on the bench,” Graham said. “But this guy’s a bridge too far for me. He should take those views and run for office.”

This from a Republican who voted for Supreme Court Associate Justice Sonia Sotomayor!  To be fair, perhaps if Sotomayor where on record as identifying constitutional rights to “education, shelter, subsistence, health and the like, or to the money these things cost,” or imposing perpetual racial quotas, maybe Graham would have voted no on her too.

Graham’s criticism is a perfectly stated counterargument for the Leftist lawyers and judges who think the courts are where laws are made.  They’re not.  Reading the Constitution, Article I, clears that up.  If Professor Liu really wants to “change” America through law, he should saddle up and challenge Senator Diana Feinstein when she’s up for reelection.  Otherwise, stick to writing academic thought pieces at Berkeley.

Kudos, Senator Graham; who knew you had it in you?

In an interview with CFIF, Florida Attorney General Bill McCollum discusses the lawsuit brought by at least 20 states challenging the constitutionality of ObamaCare and why the new law’s unprecedented mandates are an affront to individual freedom.

Listen to the interview here.

Reason Magazine’s Damon Root pens a spirited argument for ridding judicial nomination hearings of their pretended denials of litmus tests.

It’s time for both sides to come clean about the importance of judicial philosophy. That means no more grandstanding about “open minds” and double standards. If Constitutional interpretation matters—and it most certainly does—then senators have an obligation to query each and every nominee about it and vote accordingly. That’s the only way we’ll ever have a real debate about the Constitution and the courts.

Indeed.  Now, if we could only get a few Senate Judiciary Committee members able to articulate a substantive, coherent judicial philosophy themselves we’ll be on to something.

Reading Joe Conason’s column today makes one wonder if the author takes seriously the words of the Constitution, or just its “spirit” – whatever that means.  In a piece that identifies the growing constitutionalist movement as fringe, Conason equates adherence to the words in the text as preferring a primitive, pre-enlightened society.

What exactly do they mean by “constitutional”? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

What Conason misses is that arguing for a textually-based, limited federal government of enumerated powers says next to nothing about the ability of state governments to weigh in on the institutions he wants so much to preserve.  Experience shows that states like California and New York will bankrupt their treasuries to provide the kind of all-providing government Conason likes.  Seemingly, the fact that other states wouldn’t if the feds weren’t allowed is what really bothers him.

Too bad.  The genius of federalism is that it affords the greatest amount of people the greatest amount of choices in the scope and scale of their government.  Once again, liberals like Conason show that when it comes to public policy choices, there’s really only one they care to defend.

It is argued that passing Obamacare with zero support from the opposing party will make Washington, D.C. a more partisan place.  Probably so.  But the real, lasting problem with the Democratic strategy of process-be-damned lawmaking is that it flips our national government’s legislative default rule on its head.

As President Obama has lamented, the US Constitution is a charter of negative liberties, which means that most of the language in the document is devoted to restraining the government to ensure the people’s freedom.  Though many hate the filibuster, it’s use relates back to fundamental premises like the separation of powers, and checks and balances.  All led to the conclusion that it should be very difficult for government to act.

Contrast that with the means used to propel Obamacare through Congress, like budget reconciliation and the “Slaughter Solution.”  There is no support  – either historically or constitutionally – for using these measures to grease the skids for substantive policy reform.  The legislative process as laid out in the Constitution is unrecognizable when it comes to Obamacare.  The Democrats who succumb to the temptation of voting for this bill, using these maneuvers, are doing much more than engaging in sharp legislative dealing.  They are irrevocably changing the rules of the game from one governed by laws, to one abused by politicians.

U.S. Solicitor General Elena Kagan seeks to destroy the fundamental principle that “[the] Constitution creates a Federal Government of enumerated powers”, judging by her brief in the U.S. Supreme Court case of U.S. v. Comstock.  The government’s brief demonstrates just how expansive she views federal power under the Constitution.

The Cato Institute, a libertarian think-tank in Washington, D.C., is challenging a federal criminal statute on the grounds that Congress acted without constitutional authority when it passed the law.

Cato and other challengers in Comstock argue that the federal government cannot use the Necessary and Proper Clause in Article 1 §8 of the Constitution to justify any and all federal action.   The government, on the other hand, argues that the Necessary and Proper Clause and the Commerce Clause in §8 allow the government to enact a range of federal criminal statutes, even if such laws are typically the province of state power.

Of course, by the government’s logic, if the Commerce Clause works to authorize a broad array of criminal laws, then what can’t the government do?  Since the government deems almost any human action to “substantially affect interstate commerce,” then there is nothing that evades federal power.  For example, in this argument audio clip, the government claims federal power is virtually limitless.

The Supreme Court has (unfortunately) already held that growing excess wheat for private consumption falls within the Commerce Clause, and that growing marijuana for private consumption falls within the federal purview as well. (Justices Scalia and Kennedy sided with the government in the latter case.)

As the Cato Institute argued in its brief, “Neither the Necessary and Proper Clause nor the Commerce Clause is a permissible footing for the Act and, therefore, the Act is unconstitutional.  As this Court recognized almost 150 years ago, ‘[no] graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,’ than the Government’s unconstitutional assertion of power against its own citizens.”

Elena Kagan, in the government’s reply brief, countered, “A commitment under Section 4248 [the act in question] is justified by the Necessary and Proper Clause in combination with whatever enumerated power or powers supported the federal prosecution and custody of the individual in the first instance.”

By June of next year, we’ll learn if the Court would prefer returning to “first principles.”  It could actually limit Congress’ expansive use of Article I § 8, or the justices could continue to allow unbridled federal action whenever the government deems it politically expedient.

Click here for the Cato brief.  For the government’s brief, click here.  For CFIF on the Constitution, click here.

Actually, yesterday was Constitution Day but given the current environment in Washington, every day should be Constitution Day.

Here is the Constitution in a neat toy, Wordle.  It is a bit surprising that the word “President” is so prominently mentioned since Article II is considerably shorter than Article I.  Since the founders were especially suspicious of a strong executive, one would think our commander-in-chief would not be so frequently mentioned.

But, amendments 12 (amending electoral college), 20 (shortening lame duck period), 22 (limiting office-holder to two terms), 23 (residents in D.C. can cast presidential ballot) and 25 (presidential succession) all deal with the President.

The word “thereof” also seems frequent, likely a relic of 18th Century rhetoric.