"When the chief justice read me the oath," President Franklin D. Roosevelt said to a speechwriter, "and came to the words 'support the Constitution of the United States,' I felt like saying: 'Yes, but it's the Constitution as I understand it, flexible enough to meet any new problem of democracy -- not the kind of Constitution your court has raised up as a barrier to progress and democracy.'"
FDR's statement vividly illustrates the Big Divide between (most) Republicans and Democrats, free marketers and collectivists, Milton Friedman and Paul Krugman. It's the line separating those who believe in the power of individuals from those who believe in the power of government -- so long as they're the ones in power. It's the line that separates those who believe in the welfare state from those who not only believe that the federal government recklessly spends more than it takes in, but also spends it on things not permitted by the Constitution -- and the country is worse off for having done so.
This is the tea party message (to the consternation of Democrats and squishy Republicans): The Constitution means what it says and says what it means. All this Constitution talk produces the inevitable backlash. Joy Behar, the learned Constitutional scholar, asked, "Do you think this Constitution-loving is getting out of hand?"
A Los Angeles Times columnist and I sat on a panel to analyze President Barack Obama's last State of the Union speech. What, I asked, gives the President authority to place health care under the command and control of the federal government? She replied, that part of the Constitution that says to provide for the domestic tranquility.
She refers to a part of the preamble to the Constitution: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility ... establish this Constitution for the United States of America." Many members of this "living, breathing" Constitution school claim authority for things like ObamaCare resides in the "promote the general welfare" part of the preamble. Using the "domestic tranquility" part was a first.
The Father of the Constitution, James Madison, anticipated the preamble-gives-government-permission-to-do-all-sorts-of-things-for-which-it-lacks-authority argument. In 1794, Congress appropriated money for charitable purposes. An incensed Madison said, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."