- The Washington Times - Tuesday, June 29, 2010

When a president and a Congress collude to pass and sign into law unconstitutional power grabs, bailouts and takeovers there is only one immediate backstop: the Supreme Court. Every branch of government has an obligation to preserve, defend and uphold the Constitution, and if the legislative and executive branches overstep their boundaries, the judicial branch can stop them.

On the other hand, if the Supreme Court doesn’t say “no” when the other two branches go too far, there is no tax that can’t be levied, no mandate that can’t be imposed, no regulation that can’t be instituted and no industry that can’t be taken over. The only recourse Americans have is to remove and replace members of Congress and the president slowly through the election process. But when Supreme Court judges, who are unelected and given lifetime appointments, refuse to say “no” when the Constitution says they should, it can take much longer to undo the damage.

Judges who rely on flawed precedent or their own “judgment” instead of the Constitution to justify their rulings can say “yes” to anything. This is precisely how liberal judges have rubber-stamped tyrannical actions by the government in the past and how they will do it in the future.

On these grounds, I am compelled to oppose Solicitor General Elena Kagan’s nomination to the Supreme Court. During my private meeting with her, I asked Ms. Kagan questions about the limits of federal power. Her answers indicated her judicial philosophy is not grounded in the Constitution, and she would grant too much deference to precedent.

No judge should be subjected to ideological litmus tests, but should be able to say easily where the limits of government power begin and end. The answer is provided in Article 1, Section 8 of the Constitution. In a sense, the Constitution should be the litmus test. In my talk with Ms. Kagan, she was willing to talk about precedents, but very little about the Constitution.

In her confirmation hearings, she should be asked questions about the Constitution, such as, “Aside from what the Supreme Court has ruled in the past, what do you think the Commerce Clause means?” Her answer will probably be along the lines “it is settled law because of precedent,” but this is not an acceptable answer. The Constitution trumps precedent. The Constitution is the precedent.

She should be pressed to explain what she personally thinks constitutional clauses mean. These are fair questions and exactly the type of “meaningful discussion of legal issues” she demanded from Supreme Court nominees in a 1995 article in which she detailed her disapproval for our judicial-confirmation process.

The Interstate Commerce Clause has had a dramatic effect on the lives of Americans ever since the New Deal. It was the key issue in Wickard v. Filburn, which tested progressive President Franklin Delano Roosevelt’s 1938 Agricultural Adjustment Act. FDR believed farmers had a “right” to sell wheat at a certain price, and he put quotas on it to drive up the price. Then, by stretching the Commerce Clause and engaging in several turns of hypothetical mental gymnastics, the New Deal Court, packed with Roosevelt appointees, said crops grown on private land for personal consumption could fall under federal regulation.

Because of that decision, the Commerce Clause has become an endless source of government power. Today, liberals are hoping the Commerce Clause can be stretched far enough to justify President Obama’s “individual mandate” - the requirement that every man, women and child buy health insurance.

Having the Supreme Court sanction this kind of economic nationalism was key to FDR’s progressive agenda. For FDR, the rights to life, liberty and pursuit of happiness evoked in the Declaration of Independence and guaranteed by the Constitution weren’t enough. He even proposed a second Bill of Rights in his annual message to Congress in 1944. He talked about “the right of every family to a decent home,” “the right to adequate medical care” and “the right to adequate protection from the economic fears of old age, sickness, accident and unemployment” among other things.

Mr. Obama could have given FDR’s same speech today, having consciously modeled his “spread the wealth” government expansions after the New Deal. Progressives like FDR and Mr. Obama want a constitutional guarantee to a lifetime of positive outcomes for Americans, not just the opportunity to succeed. That’s why liberal lawyers and academics, including Mr. Obama, have complained that the “Constitution is a charter of negative liberties.” They think the Constitution is weak because it says what the government can’t do, instead of, as Mr. Obama says, “yes, we can.”

A “living Constitution” that changes and evolves over time to create new rights and entitlements is what people like FDR, Mr. Obama and Ms. Kagan are after. A statement from Ms. Kagan’s Oxford thesis is emblematic of this mindset. She wrote future courts could make decisions “on the ground that new times and circumstances demand a different interpretation of the Constitution.”

When judges examine Mr. Obama’s health care mandate, they can either look to the enumeration of powers in the Constitution and find limits on what the government can do, or use “new times and circumstances” to make up “a different interpretation of the Constitution.” That’s the same sort of tortured reasoning that led to the federal regulation of crops farmers grow for their own use. The “new times and circumstances” presented by the Obama administration are dominated by bailouts, takeovers and power grabs.

While judges should pay deference to past precedents, they should read the Constitution for themselves and ultimately rely on what the Constitution says the federal government can and cannot do. When Supreme Court decisions are based upon layers of precedents unmoored from the Constitution, it becomes like that old schoolroom game of telephone. Typically, the original message becomes so distorted as it’s passed from person to person that the final statement is comically erroneous.

This is the same game “yes, we can” judges play with the law. If the country is going to survive and freedom is to thrive, “yes, we can” judges must be rejected.

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