All public officials, elected or appointed, federal, state and local, take an oath to preserve and defend the Constitution. This is supposed to remind them and us that the Constitution stands above politics, and our primary loyalty is to the rule of law itself, not to any party, program or political agenda. But the dirty little secret of American politics is that the American left thinks this oath and this loyalty is quaint, obsolete and irrelevant to the goals of “social justice.”
Most university political science classes teach that this super-majority requirement for amending the Constitution is “undemocratic,” and indeed, it is, if democracy is defined as rule by majority vote. But the founders wanted checks on simple majority rule, which is why we have such super-majority features in the Constitution and the Bill of Rights. The U.S. Senate gives each state two votes – hardly democratic in terms of the small population of some of those states. But such features were essential cornerstones of the representative republic created by the founders. As Jefferson said, “An elective despotism is not what we fought for.”
Beginning in the Progressive Era of the early 1900s, the American left has waged a sustained campaign to change the Constitution to remove all the impediments to the collectivist agenda. The cumulative effect of this century-long war of attrition is a decline in public understanding and support for the Constitution. Today, we have arrived at a point where public reverence and respect for constitutional restraints on government are dismissed by the mainstream media and progressives as a “partisan political ploy.” They say constitutional arguments are insincere and “divisive.”
This trend is most visible in the public debate over Obamacare. The question of whether or not the law is constitutional has itself become a political question: partisan supporters of the proposal dismiss that question as a mere partisan maneuver to block a needed social program. A substantive debate over the constitutional questions has been belittled and resisted.
The shocking thing is that no one is shocked to hear congressional advocates for Obamacare say, in words almost this blunt, the Constitution means whatever we want it to mean. The cynicism behind such statements is unfortunate, but the most dangerous aspect of the debate is this: They really do believe it. What is more frightening still is this: The only real-world check on this anti-constitutional arrogance is the U.S. Supreme Court.
The governors or attorneys-general in 26 states are challenging certain key elements of Obamacare – the Patient Protection and Affordable Care Act of 2010 – on constitutional grounds. The lawsuit is itself revealing. When we look at the 26 states involved, we see that not one of the eight states east of the Delaware River has joined the lawsuit. If we look closer, we also notice that not a single Democratic governor has joined the lawsuit. Either Democrat governors see no constitutional barrier to this federal takeover of health care – or they think any constitutional barrier should be ignored.
This observation brings us full circle to the question – is the Constitution a partisan document as so many Democrats seem to believe? If a progressive Democrat believes that no constitutional provision should ever block the progressive agenda, whether in health care, education, or Second Amendment rights, is he not committing perjury when he takes the oath to preserve and defend the Constitution?
Other difficult and disturbing questions arise for conservatives when the Constitution is interpreted by progressive jurists to permit the unlimited expansion of government. When the U.S. Supreme Court adopts the “living constitution” theory of jurisprudence, there is little to stand in the way of new government intrusions into private rights and liberties. How long can this pattern continue before the reverence and loyalty to the Constitution by ordinary citizens is undermined?
If the Constitution loses its exalted non-partisan status and comes to be viewed as just another camouflage for tyranny, what arguments or principles will restrain citizens from following Thomas Jefferson’s admonition in the Declaration of Independence: “Whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
The progressives’ assault on the Constitution, their flagrant disregard for its principles and restrictions, is in truth an assault on the foundations of ordered liberty. If the U.S. Supreme Court agrees with the Obama administration and decides that Obamacare is authorized by the Constitution’s Commerce Clause, then there is no limit to what the government may do in any sphere. That decision would give all citizens, Democrat, Republican and independent, reason for sleepless nights.