It was always for our own good. It was always for a very good reason. It was always within the American tradition of this, that, or the other.
That's what they've told us, that's how they've patronized us, for generations, as the long tendrils of the federal government have spread and multiplied into every realm of American life. It had become so utterly unremarkable, this robotic and seemingly inexorable aggrandizement of federal power, that when Speaker Nancy Pelosi was asked, in 2009, where in the Constitution Congress was granted the authority to force people to buy health insurance, she didn't even seem to understand the question. "Are you serious?" she asked. "Are you serious?"
But Judge Henry Hudson (don't you love the historically resonant name?) was very serious when he ruled that the Constitution created a federal government of "enumerated powers," and that limits on those powers have continuing force. He's not only serious, he's cautious and learned. And he represents something we wouldn't necessarily have predicted back in 2008 when a new liberal hegemony was predicted to unfold over the next 25 years -- a principled backlash against federal overreach. Those tea party protesters in their Founders costumes may have looked ridiculous to Pelosi and Harry Reid, but their interest in seemingly antique concepts like limited government is showing up more and more. In just one month, a federal judge has ruled that the Commerce Clause cannot be stretched to cover absolutely everything the Congress wishes to do, and a chorus of limited government voices has noisily protested the Federal Communications Commission's attempt to assert control over the Internet.
It isn't possible for the former speaker or her allies in the federal juggernaut to dismiss Hudson as "Astroturf." In a carefully reasoned decision, he took note of Congress' power to regulate under the Commerce Clause. "But these regulatory powers," he ruled, "are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
Hudson continued, "The unchecked expansion of congressional power to the limits suggested ... would invite unbridled exercise of federal police powers" whereas "Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers."