Crumbling Constitution

Does the Constitution still matter?

When it was written, Ben Franklin said the Founders gave us a republic, "if you can keep it." Few people thought the republic would last another 227 years, but it has. The Constitution's limits on government power helped create the most free and prosperous country on earth.

But now, some Americans, right and left, give up on the Constitution whenever it gets in the way of policies they like. Some on the right defend anti-obscenity laws or want more mingling of church and state, while those on the left want endless economic regulation.

Sen. Tom Coburn (R., Okla.) asked President Obama's Supreme Court pick, Elena Kagan, "If I wanted to sponsor a bill and it said, Americans, you have to eat three vegetables and three fruits every day, does that violate the Commerce Clause?" Amazingly, Kagan wouldn't say, "Yes, of course!"

She dodged the question.

Once on the Court, Kagan was part of the 5-4 majority who concluded the government can force us to buy something much more expensive than fruit and veggies: Obamacare can force us to buy health insurance.

Progressives have no problems with that. On my TV show, Ian Millhiser of ThinkProgress.com said government making you buy vegetables isn't so strange: "I don't know how to tell you this, but government already makes you buy things like broccoli. What do you think food stamps are? What do you think school lunches are? The government has the power to tax you and buy things with it."

Even creepier than wanting government to have so much power is the way progressives shift their arguments to get policy outcomes they want.

In 2009, Obama said that while Obamacare imposes a penalty on anyone who doesn't buy health insurance, "Nobody considers that a tax." The next year, when it appeared the Supreme Court would allow a tax but not a penalty, the New York Times reported, "Administration, Changing Stance, Now Defends Insurance Mandate as a Tax."

How effective is the Constitution if the Supreme Court itself is willing to help the President and Congress weasel their way around the constraints on federal power that the document was intended to impose?

Millhiser said that Congress has broad power to regulate commerce, to control things like hiring and firing, but can't pass laws against rape and murder.

I'm glad Millhiser recognizes some limits, although he seems to suggest that the feds can do whatever they want except pass laws that might actually protect people.

Tim Sandefur of the Pacific Legal Foundation came on my show to rebut Millhiser, saying the Founders didn't expect government to control everything that goes on in the economic realm any more than they expected it to control speech.

"The Constitution is a promise about how government power is going to be used. It's a promise written by people who had experienced life under tyrannical government," says Sandefur. "The lesson they learned from that and from their knowledge of previous tyrannies was that the most important issue is to wall off government power from our private lives and to make sure that nobody -- not elected officials, not a king, not a dictator -- gets to dictate how we live our lives."

The Constitution doesn't get the respect it deserves, but it can still slow the growth of government. In 1895, Congress passed an income tax, but the Supremes said, no, the Constitution does not give you that power -- and the income tax was struck down. America at least avoided a national income tax for the next 18 years, until Congress and state legislatures approved an actual Constitutional Amendment.

The Constitution has also limited the power of politicians to ban handguns and political campaign contributions. Each time the Supremes say "no," that may make the next crop of politicians a bit humbler.

The Constitution reversed President Harry Truman's nationalization of the steel industry. Maybe that deterred Presidents Bush and Obama from nationalizing America's banks after the collapse of the housing bubble. Maybe.

We benefit from the Constitution's existence nearly every time it stymies politicians' ambition to control us.