No Time For Symbolic Gestures

Rand Paul At CPAC: The Point of No Return

by John Hayward

Posted 02/11/2011 ET

Senator Rand Paul is not without a sense of humor, as he demonstrated with a bit of prop comedy, highlighting the “stupidity of government” with a gas-powered alarm clock the EPA has approved as an “energy-saving device.” He can also be blunt, as when he criticized the spending cuts proposed by House Appropriations Committee Chairman Hal Rogers, a Republican from Paul’s own state of Kentucky, by saying “it’s too little, it’s not enough, it’s too timid, and we must be more bold.”

He’s a loyal son, using a CNN interview to cheerfully inform Donald Trump that his chances of winning the presidency are “less than my father’s,” after Trump told the Ron Paul cohort at CPAC that their man had a “zero percent” chance of sitting in the Oval Office. Rand Paul nevertheless looked a bit annoyed with his dad’s most ardent supporters during his own CPAC presentation, which they interrupted more than once.

Such are the contradictions of the freshman Senator from Kentucky, slapped with a media caricature of eccentricity because he asks big questions about an insane system. The romance of Big Government has no appeal to Rand Paul. He has calculated the doom of Obama-style socialism to four decimal places, and he has no patience for symbolic gestures or feeble half-measures.

“My aim is not to pass bills, but to repeal them,” Paul explained, “especially those that do violence to the Constitution.” He acknowledged that his job as a Senator is to represent the interests of his constituents, and insisted “the main interest of my constituents is liberty.” He pursues that interest in the shadow of a system whose critics were told to be silent until it began to implode… and are now denounced as “extremists” for laying out the drastic measures required to save it.

Paul is especially eager to beat the Commerce Clause monster back into the basement where it belongs. “For sixty or seventy years, we worked with the notion the Commerce Clause means we can do anything,” he said, illustrating his point with the infamous Wickard v. Filburn case from 1942. As Paul explained it, farmer Filburn was slapped with a fine for growing too much wheat, even though he used the surplus for his own consumption. The fine was justified under the Commerce Clause because Filburn’s home-grown wheat made it unnecessary for him to engage in interstate commerce, and thus affected the price of wheat in other states.

This was the pivotal act of judicial hocus-pocus which transformed the limited government of the Founders into the leviathan of the New Deal, and Paul thinks it’s time to find a counter-spell. He sees a revolution brewing if the Supreme Court upholds the Florida judge who struck down ObamaCare, hoping it will begin the unraveling of Wickard v. Filburn unlimited-government jurisprudence. At stake will be the answer to “whether our government can be restrained by the Constitution.” For this reason, he emphasized the importance of winning presidential elections with strong conservative candidates, because “it is important who sits on the Supreme Court.”

Paul warned we are approaching the “point of no return,” where the national debt equals the entire output of our economy – a limit he notes Japan has already passed, and from which no government has ever recovered. To avoid passing this point, he asserted, “we must be more bold” than declaring spending freezes, or passing puny symbolic spending cuts. His concept of boldness includes abolishing the entire Department of Education.

He also insisted those bold spending cuts must include entitlements, like Social Security and Medicare, coupled with “a long and hard look at our military budget.” This was the most contentious line of his speech. “The most important duty of government is national defense,” Paul acknowledged, “but the doubling of our military budget over the last 10 years has not been spent wisely.” Former Defense Secretary Donald Rumsfeld, who would later take the stage to accept the Defender of the Constitution Award (and insist on sharing it with the men and women of the United States Armed Forces), responded to this assertion by pointing out that defense bills have been just as liable to gain a coating of pork-fried earmarks as any other legislation.

It remains to be seen whether trimming this fat would be good enough to satisfy Rand Paul’s call for “compromise” on spending cuts from conservatives. It’s fair to say there is plenty of room for “long and hard looks” at everything, when you’re creeping around inside the haunted house of a $3.6 trillion federal budget.

Whatever one’s opinion of his specific proposals, Rand Paul is commendably forthright in saying that we cannot solve a massive problem like government insolvency by thinking small. When he asks the Tea Party faithful to join him in “defending the Constitution,” he cautions them it won’t be an easy task. The hour is late, and the timid content themselves with dreams of bravery, while the bold prepare to get a little crazy in doing battle with utter madness.

John Hayward is a staff writer for HUMAN EVENTS, and author of the recently published Doctor Zero: Year One. Follow him on Twitter: Doc_0. Contact him by email atjhayward@eaglepub.com.

At Last:Recognizing Constitutional Restrictions

The Constitutional Moment

Judge Vinson introduces ObamaCare to Madison and Marshall.

'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. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson's 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.

At the heart of the states' lawsuit is the individual mandate, which requires everyone to purchase health insurance or be penalized for not doing so. "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States," Judge Vinson writes.

Rep. Marsha Blackburn on the health-care ruling.Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison's notes at the Constitutional Convention and the jurisprudence of the fourth Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.The courts affirmed this limited and narrow understanding until the New Deal, when Congress began to regulate harum-scarum and the Supreme Court inflated the clause into a general license for anything a majority happened to favor.

In a major 1942 case, Wickard v. Filburn, the Court held that even growing wheat for personal use was an activity with a substantial economic effect on interstate commerce, thus justifying federal restrictions on the use of agricultural land meant to prop up commodity prices. It wasn't until the William Rehnquist Court, a half-century later, that the Justices began to recover some of the original limits, notably in the Lopez (1995) and Morrison(2000) cases.

Yet even in its most elastic interpretations, the Commerce Clause applied only to "clear and inarguable activity," Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has "no impact whatsoever" on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would "create a completely centralized government."

The Administration contends that not purchasing insurance—inactivity—is really activity, because everyone will eventually need medical care and their costs will be transferred to the insured. But Judge Vinson dissects that as a "radical departure" from the Constitution and U.S. case law. It is "not hyperbolizing to suggest that Congress could do almost anything it wanted," he writes. "Surely this is not what the Founding Fathers could have intended."

Unlike Judge Henry Hudson in Virginia, who also found ObamaCare to be unconstitutional, Judge Vinson addresses the Administration's fallback argument that the Constitution's Necessary and Proper Clause justifies the law even if the Commerce Clause doesn't. He writes that this clause "is not an independent source of federal power" and "would vitiate the enumerated powers principle." In other words, the clause can't justify inherently unconstitutional actions.He notes that no one can opt out of eating any more than they can from the medical system, so return to the Wickard example of wheat: "Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market."

Judge Vinson also went beyond the Virginia case in striking down the entire ObamaCare statute—paradoxically, an act of judicial modesty. Democrats intentionally left out a "severability" clause if one part of the bill was struck down, and the Administration repeatedly argued that the individual mandate was "essential" to the bill's goals and mechanisms and compared it to "a finely crafted watch." Judge Vinson writes that picking and choosing among thousands of sections would be "tantamount to rewriting a statute in an attempt to salvage it."

***

We take a measure of vindication in the decision—David Rivkin and Lee Casey, the lawyers who argued the Florida case, first suggested in these pages that the individual mandate was unconstitutional. Judge Vinson's learned opinion has put down a Constitutional argument that will reverberate all the way to the Supreme Court.

This story has been corrected. An earlier version said that John Marshall was the first Chief Justice. He was the fourth.Copyright 2011 Dow Jones & Company, Inc.