Dawning Light on the High Court?

The Constitution might actually mean something after all.

Last week saw the sudden destruction of a Democrat juggernaut.  We're all aware of the historic loss of "Ted Kennedy's Senate seat" to a man who not only is a fiscal conservative, but openly ran as one - in the most liberal Democratic state in the Union!  Yet even there, it would appear that voters have realized that government growth must be stopped here and now.

As Senator-elect Scott Brown (R-MA) promised during the campaign, he provides the 41st vote against Obamacare, which may doom it.  We can all hope.

Upsetting though the loss of their half-century-long dream is to Democrats, Sen. Brown's election was not necessarily their worst injury.  Yes, it's the vein spewing blood all over the room right now, but there are other issues.

Amidst the mayhem of losing health care, they may not yet have realized that the Supreme Court has jammed an even bigger dagger into their back.  What's more, the Supremes may, just possibly, be standing by with a whole pocketful of shivs waiting for a place to shove them in.

The Constitution Returns to Life?

It's long been apparent that liberals don't feel that the Constitution means anything in particular, just whatever they want it to mean at the moment.  Thus a "right to privacy" which isn't even mentioned in the Constitution becomes the foundation of a right to murder your unborn baby; whereas the clear text stating that the people have the right to arm themselves becomes a meaningless shout-out to the National Guard and no obstacle to gun bans.

Was there, in fact, any limit to what Congress could do?  As Nancy Pelosi sneered in disdain when asked whether Obamacare was Constitutional,

Are you serious? Are you serious?

It's no surprise that Speaker Pelosi was incapable of taking that question seriously; for decades now, her party hasn't even considered there to be such a question, and for most of that time the Supreme Court agreed.  Over the last couple of years, however, that seems to be shifting.

The first harbinger of change actually showed up in 1995 under Bill Clinton, when for the first time in 60 years the Court found that, yes, actually, there is a limit to how far the Commerce Clause can be stretched.  Congress had passed a federal law banning guns from school zones, on the premise that schools affect interstate commerce.  To everyone's surprise, the Supreme Court found this a bridge too far; as Chief Justice Rehnquist wrote in his majority opinion,

Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity ... that Congress [cannot] regulate [under the Commerce Clause].

In other words, if Congress can do this, they can do anything, and the Constitution's supposed limits are meaningless.  So, clearly, they can't regulate guns in public schools.

Since then, the Court has slowly come around to applying this logic consistently, actually reading what the Constitution says and taking its plain meaning, leading up to last year's Heller decision striking down local gun bans.

But if the Second Amendment actually means what it says, that

...the right of the people to keep and bear Arms, shall not be infringed

is it possible, just maybe, that the First Amendment too should mean something?  That

Congress shall make no law ... abridging the freedom of speech, or of the press

no matter how tempting it might be?

That was exactly the question posed in the Supreme Court's recent case.  In Citizens United v. Federal Election Commission, federal campaign regulations had prevented an anti-Hillary movie from being shown on pay-per-view TV prior to the 2008 primaries.  Citizens United was a nonprofit organization opposed to Hillary; their donors had a political opinion regarding Hillary Clinton that they wished to communicate to their fellow Americans.  FEC bureaucrats said they couldn't; a lawsuit ensued.

When put this baldly, it's hard to imagine how any Supreme Court that holds the slightest pretense of honoring the Constitution could have reached any conclusion other than the one they did.  Are we to think that our Federal government can prevent a political point of view from being communicated based on who's paying for the communication?

Is there any possible way that our Founders intended speech to be censored based on who was saying it, or paying for it to be said?  The thought is almost inconceivable, as Justice Kennedy hammered home in his majority opinion:

Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute's purpose and design. [emphasis added]

Unintended - but Good - Consequences

In overturning the restrictions of McCain-Feingold campaign finance regulations, the Supreme Court has opened a major can of worms.  The reason Democrats and RINO Republicans enacted the bill in the first place was to limit the power of "corporate speech."  Presumably they think that Americans are too stupid to know when the wealthy are trying to cram propaganda down their throats, notwithstanding the multitudinous examples of vastly wealthy people who spend millions on political campaigns and still go down to defeat (remember Ross Perot?)

If corporations - which, after all, are nothing more than groups of private individuals who have voluntarily chosen to band together for a particular purpose - have rights and freedoms in the area of speech, could it be that they also have other rights?  Can it be that Congress cannot infringe the same natural rights to freely buy and sell that individuals have?

Over the last half-century, Congress has stretched the Commerce Clause far beyond anything the Founders would have recognized.  At the same time, our government bureaucracies have sliced and diced the Bill of Rights to their convenience, in an effort to grant all power to the federal government at the expense of the states.

One small requirement of McCain-Feingold was left standing: the disclosure rules, so America's voters can know who wants them to believe what.  Ron Paul's 2008 campaign gave us a foreshadowing of where we ought to be: full and immediate disclosure on the Internet of political fundraising, but with no limits on how much money you, anyone, or anything else can spend to promote a political view as long as the sources are accurately disclosed.  Mr. Obama's hidden sources should be forbidden.  That, and that alone, should be the only federal campaign-finance rule.

Politicians naturally want to Do Something about any problem or issue that concerns them, the most important of which is getting re-elected.  Most of the time, though, the best thing to be done is nothing - or, less of whatever the government has already been doing to muck things up.

The Constitution is the very embodiment of this concept.  There are many things the states can do which the federal government has no right to meddle in - the Supreme Court had no problem with a state banning guns from school zones, they simply found it unconstitutional for the feds to do that.  Our Founders felt the principle of state sovereignty so important that they felt that it deserved its very own amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution does not say "Congress can do anything unless we say it can't."  It says, "Congress cannot do anything except those things we have specifically laid out as under its authority."  When American governance returns to this principle, many of our national arguments disappear.

Let's hope that the Supreme Court has started the long road back to where America was intended to be: a federal republic with a greatly limited and strictly circumscribed central government.

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Politics.
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