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ObamaCare vs. James Madison (1001)

TOM BURGUM
Contributing Columnist
burgum@lbknews.com

While the future of ObamaCare is an important political question, the really important issue before the court is whether they will finally draw the line on the power of the Commerce Clause or say goodbye to James Madison’s system of limited and divided government powers.

Joseph J. Ellis, whom The New York Times calls “The Founder’s Historian for our times,” wrote, “The core question posed at the founding was not whether the United States should become a democracy, but whether it should become a viable nation-state. And the chief difference of opinion was not a clash between elitists and egalitarians but between those favoring a wholly sovereign federal government and those anxious to preserve state sovereignty over all domestic policy.”

This issue has never been fully resolved — ObamaCare is only the latest battleground — but the concept of federalism, or divided authority, became a keystone for a form of government that, as Ellis wrote, “replaced the monarchial dynasties of Europe in the nineteenth century, then defeated the totalitarian despotisms of Germany, Japan and the Soviet Union in the twentieth.”

The essence of American federalism according to Madison is: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” (Italics are mine.) ObamaCare (National Federation of Independent Businesses v. Sibelius as the lead case is titled) actually orders an unprecedented change in the structure of American government, a change that would create an all-powerful federal government.

The ObamaCare mandate is unique. As much as Congress loves to exercise power, neither Solicitor General Donald Verrilli nor any of the lower courts found a single other federal law throughout our nation’s entire history that compels individuals to enter into commerce.

Congress certainly exercises power over the states. As Adam J. White wrote in The Weekly Standard: “Congress never lacked the creativity to fashion indirect ways to achieve its preferred ends — think of the perennial threat to withhold highway funds as a way to cajole the states into forcing drivers to wear seatbelts — but never claimed for itself the power to achieve its economic aims through direct commands to the citizenry at large.”

The government also argued that the mandate comes within the powers granted by the Necessary and Proper Clause, which authorizes Congress to “make all laws which shall be necessary and proper for carrying into execution Congress’s other enumerated powers.” Here the government’s position seems to rest on a mushy, ill-defined melding together of the Commerce Clause and the Necessary and Proper Clause. Verrilli did try the tax line but not even the liberal members of the court seemed to accept that line of argument.

The government can’t be entirely blamed for this muddled position. According to White, “The Sixth Circuit’s Jeffrey Sutton thought prior precedents were a sign of a feckless Supreme Court adept at ‘frequently adopting limits on [Congress’s] authority and just as frequently abandoning them, all while continuing to deny that Congress has unlimited national police powers;’ he challenged the Court to either ‘stop saying that a meaningful limit on Congress’s commerce power exists or prove it isn’t so.’” Similar frustrations were voiced by the D.C. Circuit.

There would not be massive grieving in Washington should Madison’s concept of government be sent to the waste bin, as many today are hostile to the concept of divided government. “He is,” wrote columnist Rich Lowry, “a most inconvenient Founding Father since he tells us: No, the federal government can’t do whatever it wants; no, we can’t all just get along; no, we can’t rush to pass whatever legislation is deemed a ‘can’t wait’ priority by the president. Now, grow up.”

Madison distrusted powerful government because he well understood the fallible nature of the people in charge. (See Doctrine of Original Sin.) In a speech delivered during the Constitutional Convention in 1787, Madison said: “The essence of government is power; and power lodged, as it must be in human hands, will ever be liable to abuse.” In The Federalist, No. 51, he wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

When faced with determining what several hundred-thousand pages of federal regulations allow you to do, it is a bit difficult to connect with Madison’s idea that the government is only allowed to do what we allow it to do. But, that is why the division of power is so important: “In the compound republic of America,” according to Madison, “the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” Madison, you see, thought people surrendered limited power to the government, not the government surrendering limited power to the people.

Madison even foresaw the coming of ObamaCare and Nancy Pelosi’s Congress. What else could he have had in mind when he cautioned the Convention and future generations: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” Remember when Nancy Pelosi told us “we have to pass the bill to find out what’s in it?”

Democratic friends might think more kindly of Madison’s limited government concept if they remember Sir Thomas More’s answer when asked if he would cut down every law in England to get at the devil. “Oh?” More asked, “And when the last law was down and the Devil turned ’round on you, where would you hide?”

Indeed, where will the Democrats turn when a Republican president and Congress trample the minority party and public opinion because they have questionable legislation they think is a priority that “can’t wait?”

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4 Responses for “ObamaCare vs. James Madison (1001)”

  1. Dividist says:

    Tom,

    Thanks. A thoughtful analysis. Madison is my favorite founder. In part because of my fondness for Madison and his notion of pitting “ambition against ambition” I have become an advocate for a divided government voting heuristic – always voting at the federal level in a manner to ensure that one party does not control the executive and both legislative branches.

    Anyway, thought I’d leave this comment as a courtesy to let you know your post was included in my latest edition of the Carnival of Divided Government – a periodic compilation of articles, posts, and great thoughts (or not) on the subject of divided government.

    http://www.dividist.com/2012/05/carnival-of-divided-government-liii.html“>Carnival of Divided Government

  2. Thomas Fortune Ryan says:

    Not withstanding the Supreme Court and its addiction to Stare Decisis, Obama care (Messiah care) legislation is a complete abrogation of an individual’s responsibility to act responsible.

    After having read the Q&A’s from the Justices of the Supreme Court over a three day period I have a sense that there are a number of Justices (six or more) who are heavily bothered by the government’s befuddled totalitarianism and their obvious inability to sustain a comprehensive argument in favor of this expansion of the Commerce Clause.

    Hopefully the Court will find that this piece of legislative legerdemain is a complete obfuscation of individual rights without due process.

  3. Tom Burgum says:

    Always glad to hear from Old Submariners.

  4. Old Submariner says:

    Right on the mark! It is too bad we have to explain all of this to the Democrats in this day & age. But they are so busy worrying about whether Mitt’s wife ever worked. I’ll help them out there. Look for a 1996 Boston Globe article about them. When they were a young married couple both attending Brigham Young University, working & starting their family, they were like most of the other young married couples – short on funds. Remember Mitt’s father was the head of American Motors. They made two things, Ramblers & Kelvinator appliances. Have you seen either lately? Didn’t think so. When the business collapsed, dad lost most of the family $$$. It is just that Democrats hate to see someone be successful without needing the government to help them accomplish their goals.

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