One question I often get (that is, I, Rob Natelson, not Jon Caldara, although he may get the question, too)  is “Can you recommend a book I that will tell me in simple language what the entire Constitution was originally supposed to mean?”

I haven’t been able to recommend one, so I wrote The Original Constitution: What It Actually Said and Meant. It is now available in e-book form. Hard copy will follow in a few weeks.  (Folks at the Independence Institute assisted with production.)

The book surveys in fairly easy language the legal meaning of the entire Constitution as of late 1791, just after adoption of the Bill of Rights.

(Another shameless plug:  For those interested a more academic approach, Cambridge University Press will be publishing my co-authored work, The Origins of the Necessary and Proper Clause, later this year.)

A few law professors have been arguing that it’s constitutional to force people to buy health insurance, because the Constitution gives Congress power to “regulate Commerce among the several States.”

Under the very broad formulation of the federal Commerce Power issued by the modern Supreme Court, Congress can regulate not just interstate commerce and certain related activities (as the Founders intended) but also any “economic activities” that “substantially affect interstate Commerce.” This, the new argument goes, includes a power to punish non-activity (i.e., failure to buy insurance).

Let’s examine some of the implications of this novel argument:

* The Constitution grants Congress authority to “provide for the Punishment of counterfeiting. . . ” By the same reasoning, Congress enjoys power to punish anyone who doesn’t counterfeit.

* The Constitution grants Congress authority to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Hence, Congress may punish anyone who does not commit those crimes.

* The Constitution grants Congress’ authority to “declare the Punishment of Treason.” Hence, Congress may “declare the Punishment” for people who do not commit treason.

These examples show how ridiculous such “reasoning” is. Ridiculous, but also dangerous, because it can be used to obliterate meaning from the constitutional language, and, thereby, all constitutional limits on government.

Some of the Founders warned us that unscrupulous advocates would try to subvert the Constitution in this way — by arguments those Founders called “sophistry.”

Sophistry is defined by Merriam-Webster’s Collegiate Dictionary (11th ed.) as “subtly deceptive reasoning or argumentation.” The term comes from the practice of professional mouth-pieces in ancient Greece, who to demonstrate their rhetorical prowess would construct clever arguments for a proposition, and then just as slyly tear it down.

If there were any doubt that our constitutional protection has been lost, that doubt should be removed by the congressional vote subjecting the personal health care decisions of every American to central governmental authority.

By an extremely narrow majority, the House of Representatives has crammed a profoundly unpopular and unconstitutional measure down the throats of the American public:  And not only unpopular and unconstitutional, but expensive enough to virtually ensure our nation’s eventual bankruptcy.

Unless it is overturned, nationalized health care will complete the process of changing the Founders’ system of a government dependent on the people to one where the people are dependent on the government.  Citizens will be thoroughly re-molded into subjects.

The unseemly legislative conduct (the Founders would have called it “corruption”) leading up to the vote have communicated even to those previously not paying attention that federal politicians are now absolutely, utterly out of control.  The majority in Congress has rendered it perfectly clear that there is no constitutional or legal restriction they will not violate.

As congressional rumblings about the recent Citizens United decision have suggested, protections for free speech may be next.

There is no “good” response to these outrages – that is, “good” in the sense of easy and foolproof: After all, the very people who perpetrated them also control America’s nuclear arsenal.  There are only responses that, while difficult, offer real hope of success.  Here are a few:

*    Widespread court challenges, on every colorable constitutional, legal, and technical ground we can think of.  State governments can take a leading role in this, by virtue of the fact that state governments are more likely than individuals to have standing in federal court.  State governments and officials also have much to lose if the feds are allowed to complete their health care takeover.

*    Health care provider non-compliance:  To the extent they can, physicians and other providers should opt out of the system.  Their choices include partial or complete refusal to participate in Medicare, Medicaid, and other government programs; refusal to take any but direct-payment patients; reduced work hours; and even career change and early retirement.  Students considering a medical career should now reconsider.  Given the ominous nature of the federal health care coup d’etat, my guess is that a lot of this will happen anyway.

*    State constitutional amendments.  One excellent idea is the amendment proposed in Colorado guaranteeing that the state will never participate in any system that denies patients and physicians the right to their own health-care decisions.

*    Civil disobedience.  This should include state non-compliance with federal health-care mandates and peaceful resistance by providers and citizens at every level.  The model here should be the Civil Rights movement of the 1960s.

*    Redoubling efforts for the 2010 elections.  The people responsible for this bill should be cleaned out of Congress – all of them.  In addition, we need to gear up for 2012 and ensure that state lawmakers elected in 2010 fully understand their constitutional obligations.

*    Amend-to-Save.  A clean sweep of Congress is not enough.  There is now no escaping it – we need amend our Constitution to save it, or we will not have any Constitution left.

There is nothing new in this last proposal.  Our fathers, grandfathers, and their predecessors all adopted constitutional amendments designed less to change the system than to preserve it.  Again and again, the American people adopted formal amendments to rein in the politicians and restore or reinforce Founding principles.

Thus, the Ninth Amendment made clear that federal powers were not to be interpreted too expansively.  The Tenth Amendment clarified that the central government had no authority other than that granted by the Constitution.  The Eleventh reversed a Supreme Court opinion that conflicted with the dominant understanding of the ratifiers.  The Twenty-First Amendment restored control over alcoholic beverages to the states, where the Founders had left it.  The Twenty-Second Amendment restored the two-term presidential tradition set by Washington, Jefferson, and Madison.  The Twenty-Seventh, although not finally adopted until 1992, had been proposed by James Madison and sent to the states by the First Congress.  The Thirteenth, Fourteenth, and Fifteenth (the post-Civil War amendments) were more radical, but also principally fulfilled the ideals of the Founding.

Now we need a Twenty-Eight, Twenty-Ninth, and Thirtieth Amendment – not so much to change the Founders’ Constitution as to restore it.  How?   Congress will not reform itself.  Fortunately, the Founders recognized that when Congress veered completely out of control, there had to be a way to amend without its consent.  Hence, they wrote into the Constitution a procedure whereby two-thirds of the states could propose amendments, which would then be drafted by a convention, and approved only if three-quarters of the states ratified them.

We now have no choice: We are going to have to use that method.  That’s why state legislative races are so important this year.

There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

The recent election results in Virginia and New Jersey – representing in part a strong repudiation of the threats to freedom over the past year – have energized many pro-liberty activists. It is imperative that we keep the pressure on. 

But we can be sure the other side will try to trick us into damaging statements in order to discredit us, or lure us into time-wasting strategies.  So here are a few things to remember: 

*          Let’s keep our eye on the ball. The ultimate goal of most in the pro-freedom and “Tea Party” movements is to restore constitutional limits to the federal government. Our Constitution – not any peripheral or personal causes – is what we are working for.

 *          Swarm, swarm, swarm.  The focus for the short-term has to be to continue to “swarm” our elected representatives, get in their faces, and tell them over and over that more deficit spending or tax increases are simply unacceptable. So also is any major expansion of government control, particularly a takeover of heath care.

 *          Restoring limits on the feds.  The focus long-term has to be one or more constitutional amendments to put the federal government’s house back in order and protect future generations from the kinds of assaults on our freedom we have faced over the last year. When a system breaks down, sometimes you have to patch up to set it right — just as our fathers and grandfathers adopted the 22^nd Amendment to re-establish the two-term presidential tradition that Franklin Roosevelt had disregarded.  That’s our situation now.

 *          2010 elections. The focus medium-term is now the 2010 elections – not just for Congress, but particularly on the state level. This is because constitutional amendments to curb Congress’s powers are probably not going to come from Congress. The states will have to use the Constitution’s state-proposal procedure.

 *          Don’t let the bad guys marginalize you. Talk of actions such as secession suggest that we are the ones willing to destroy our constitutional system – when in fact the opposition has that dubious distinction.

 *          Work smart.  The other side has a lot of people who work full-time in politics or who work for the government, which sometimes amounts to nearly the same thing.  That’s in addition to Soros money.  So we have to carefully husband our resources – devote your time and energy only to things that make sense in view of our goals. 

*          Don’t waste your time on impossible causes.  Here are a few causes that are certain time-wasters: (1) impeaching Obama (impossible while the Dems control Congress, even assuming there are grounds to do so), (2) recalling U.S. Senators or Congressmen before their terms are up (there is no recall procedure authorized by the Constitution or federal law), and (3) secession movements (which, besides conceding the Constitution to the other side, overlooks the fact that they have the nuclear weapons). 

*          Again, keep your eyes on the ball – restore the Constitution. That means letters to the editor, candidate identification, working in the political party of your choice, fundraising, keeping in touch with others in the pro-freedom movement, and educating yourself by reading websites like The Cauldron and listening to great commentators like Jon Caldara. 

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

     There is an on-going debate about the extent to the First Amendment bars congressional campaign finance limits. That debate is important, but it doesn’t address a more fundamental question: What empowers Congress to regulate congressional campaign finance at all?

         Remember that the Constitution gives Congress only the powers the Constitution lists. All other powers are reserved to the states and people by the Ninth and Tenth amendments.

         Regulation of campaign finance is said to be part of Congress’s power to govern the “Manner” of congressional elections under the Time, Manner, and Place Clause (Article I, Section 4, Clause 1).  That provision says the states shall prescribe “the Manner of holding Elections for Senators and Representatives,” but that Congress may (with one restriction) “make or alter such Regulations.”

         This past summer, I investigated to find out what the Founders meant by the “Manner of holding Elections.” I found a lot of evidence, most of it unexamined by prior researchers. Interestingly, almost all the evidence suggests Congress was not given power to regulate campaign finance. That was a power reserved to the states and the people. Continue Reading »

There is abundant evidence that government “stimulus” programs hurt the economy more than they help.  The auto industry is getting a taste of that right now.  The “Cash for Clunkers” program accelerated sales for a while, but since then car sales have crashed.

But that describes only the damage to the auto business.  Think about all the goods that weren’t bought or the investments that weren’t made because the government diverted all that cash into a one-time spending spree.

Now two economists have put a price tag on the damage.  A new study by Burton A. Abrams and George R. Parsons, both of the University of Delaware, found that the economic damage from the program exceeded the benefit by $2000 per car!

So instead of helping the economy, the “Cash for Clunkers” program made the situation even worse.