Fellow Boomers will recognize the reference: “Eve of Destruction,” by Barry McGuire, was one of the big hits of 1965. Its chorus sticks in one’s head after all these years:
But you tell me
Over and over and over again, my friend
Ah, you don’t believe
We’re on the eve
That’s the way liberals are feeling tonight. Tomorrow has the potential to be the worst day for the left since, what? I would say Bush v. Gore. There likely will be a double whammy: the House will vote to hold Eric Holder in contempt, making him the first Attorney General in history to be so cited, and a number of Democrats will join with the Republicans, making the resolution bipartisan. At more or less the same time, the Supreme Court will deliver its long-awaited Obamacare decision.
So hysteria has been building throughout the day. Democrats are spinning furiously; law professor Larry Tribe predicted confidently this his former student John Roberts will author a majority opinion that upholds Obamacare in its entirety, on a 6-3 vote. Well, I am a former student of Tribe’s, too, and I think Obamacare is going down to defeat, 5-4. There is some reason to believe, I think, that Roberts has written the majority opinion and that Scalia is not a dissenter; if that is correct, Obamacare is a goner.
Beyond predicting victory, Democrats have tried to posture the case as a test of the Court. If the Court doesn’t uphold Obamacare, it’s racist! It’s just like the Dred Scott decision! (I think that was Chris Matthews.) Hysteria has been rampant all day long.
Paul commented earlier this evening on the political implications of the decision. I want to make a broader point about the merits of the case, which raises the most fundamental issue about the nature of our government. The Constitution established a national government of limited, enumerated powers. At the time, and for many years after, there was no doubt about this proposition. Even today, pretty much everyone pays lip service to the idea that the federal government is one of limited powers.
But history has taken a different turn. Over the last century, the Commerce Clause has been used to justify federal involvement in pretty much everything. The clause itself does not obviously justify such a broad interpretation:
Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
So, does that mean that the federal government can run your family’s health care? Every Democrat says Yes. While seldom articulated honestly, the standard view of today’s liberal is that the federal government can do anything that is not specifically proscribed in the Bill of Rights. Which means that the federal government has plenary authority and is not, in fact, a government of enumerated powers.
In recent years, the Supreme Court has, on a couple of occasions, backed away from the premise that the Commerce Clause authorizes everything imaginable. But Obamacare raises this question in a manner that is both more stark and much more important than any prior case. It is fair to say that if running your family’s health care is permitted by the Commerce Clause, then anything is permitted. So it is now or never for the Constitution. The stakes are very high. I have no special insight here, but I hope and expect that tomorrow’s majority (or plurality) opinion not only holds key provisions of Obamacare unconstitutional, but also lays the foundation for a rational interpretation of the Commerce Clause and a restoration of the federalism that the Constitution was intended to establish.
If that happens, liberals will once again go crazy, which will be sad but entertaining. Here is a firm prediction, however: if the Court goes the other way and upholds Obamacare, conservatives will not become hysterical, will not proclaim the death of democracy, and will not accuse the liberal justices of racism, or whatever. Notwithstanding the high stakes involved, conservatives will respond in a reasonable and dignified manner.
Let’s hope, however, that that prediction is not tested.