During the confirmation hearings for Supreme Court nominee Elena Kagan, Sen. Tom Coburn asked what the media called a “silly” question. The question wasn’t silly, but Kagan’s answer was evasive − and therefore revealing.
Coburn asked Kagan whether it would be constitutional for Congress to require all Americans to eat three vegetables and three fruits daily. Coburn wanted to discover whether Kagan believes that the federal government has unlimited power to control the lives of Americans.
Kagan declared that such a law would be “dumb,” adding that it would be wrong for courts to strike down laws that were senseless just because they were senseless. But she refused to respond to Coburn’s question as to whether such a law would be constitutional. Why?
Anyone who got a passing grade in high-school civics would doubt that the government possesses such sweeping powers. But Kagan was careful not to commit herself. She saw where the question was leading. If Congress does not have the power to tell us what to eat, then how does it have the power to tell us what kind of health insurance to buy, or what kind of health care we can receive ‒ or not receive?
To Kagan, the Constitution is not our foundational document, from which we learn the basic structure and functions of our government. Kagan, and liberals like her, do not start with the Constitution, then determine whether what they propose is permissible. Instead, they go in the opposite direction. They start with their leftist, statist agenda, then try to find a part of the Constitution that − by some stretch of the imagination − might seem to justify what they want to do.
Sen. Coburn concluded, holding up a copy of the Constitution, “The guys who wrote this never, ever fathomed that we would be so stupid as to take our liberties away by expanding the Commerce Clause this way.” That says it all.
But the mainstream media glossed over this revealing episode. They made it seem that Senate Republicans were fools, asking brainless questions about fruits and vegetables instead of concerning themselves with important matters. But freedom is the most important matter, at least in this world. On the contrary, to the mainstream media, and to many other liberals, the liberal agenda is most important, and freedom is at best a secondary consideration.
If fact, Kagan’s reply was incorrect as well as evasive. To require everyone to eat three vegetables and three fruits daily would be neither “dumb” nor senseless. Eating more fruits and vegetables would help reduce obesity, a major health risk. It would reduce the incidence of diabetes, heart disease, and some forms of cancer. No, forcing people to eat more healthful foods would be quite sensible. But it would be intrusive, even tyrannical. It would far exceed the powers granted to the federal government. It would be unconstitutional.
But Kagan couldn’t admit this, or she would have no grounds to uphold the constitutionality of ObamaCare. In her effort to further the liberal agenda, she made herself an enabler of tyranny. If the government could control what we eat, it could control any aspect of our lives, and the Bill of Rights would become meaningless.
Rights come from God, but if we hope to preserve them, they must be written down, and our government must be forced to respect them. Officials must be forced to respect not what they imagine those rights to be, but what the document says those rights actually are. They must be forced to exercise not what powers they want to have, but what powers the document actually gives them.
On the contrary, the “living Constitution” is beloved by “progressives.” It is subject to constant reinterpretation according to “evolving social norms.” This means that we have only the rights that our rulers say we have at any moment. Despite all our electronic toys, we will have regressed to medieval times. We will have gone back to the days before the Magna Carta, and all the blood that was shed to obtain our rights will have been shed in vain.
There are only two possibilities: Either the Constitution means what its authors intended, as we can determine to the best of our ability. Or it means whatever the government says it means today. Next week it may mean something else. Specifically, it means whatever five of the nine Supreme Court justices say it means. That is why Supreme Court appointments are of crucial importance. Those five justices can erase our rights and our freedoms with a stroke of their pens, assuming they still use pens.
But what is a “living Constitution”? A recent book titled “The Living Constitution” notes:
The text of the Constitution will play, at most, a ceremonial role…When a case involves the Constitution, the text routinely gets no attention…On a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy. [Emphasis added.]
As Justice Antonin Scalia noted with characteristic clarity:
The theory of an evolving, living Constitution effectively rendered the Constitution useless.
But speaking of dumb and senseless, consider this exchange:
CNS: Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health-insurance mandate?
Pelosi: [Giggles] Are you serious? Are you serious?”
We have reached the point that the Speaker of the House of Representatives, the second in line of presidential succession, believes the Constitution is a laughing matter. Our Constitution survived a Civil War and two World Wars, but can it survive that giggle?
The key question is this: Are we still trustworthy individuals, ready to take responsibility for ourselves and those who depend on us? Are we still willing to control ourselves according to ethical principles derived from religion? Are we still capable of maintaining an ordered society, with only occasional intervention by a government bound by a written Constitution?
Or are we incapable of managing our own affairs, much less those of others who depend on us? Are we emotional and intellectual teenagers, who boast of being grown up, but who depend on mom to take care of us when we are sick, and on dad to make the rules and give us an allowance?
After all, what else is ObamaCare, with its intrusion into the doctor-patient relationship? What else are all the other governmental intrusions into daily life, even including regulation of light bulbs and toilets? What else are the attempts to regulate talk radio? What else are proposals to ban books and pamphlets? What else are all the totalitarian schemes of the advocates of big government?
These programs are called “progressive,” but in fact they are a regression to an earlier time, when King George III and his officers told us how to live our lives − and enforced their will with muskets and bayonets. Why does the Department of Education need short-barreled shotguns? What method of education employs lethal force? In the end, more government means more force and less freedom. In the end, a “living Constitution” means no Constitution at all.
Perhaps the reason we have so little great writing, great music, or great art is that creative people are going into fields where creativity is out of place. Creative MBAs and CPAs gave us Enron and the subprime-mortgage bubble − and nearly destroyed the economy. Creative lawyers and judges are giving us imaginative interpretations of the Constitution − and will end up destroying our system of government and our freedom – if they are not stopped.
In an early draft of the Declaration of Independence, Jefferson referred to Americans as “subjects.” His lifelong experience of living under a king had colored his thinking. Then he realized his mistake, erased “subjects” and wrote “citizens.” No, not erased, actually scratched out with a knife. But we have the lifelong experience of living in freedom. We will have no excuse if we allow ourselves to be turned back into subjects.
I will eat as many fruits and vegetables as I darn please. My doctor and I will decide what medicines and treatments I will receive. It’s a free country. I learned that as a kid. It’s too bad they no longer teach it in law school. Maybe we can do something about that.
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