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Americans Are Worrying About the Constitution Again ^ | April 2, 2012 | Michael Barone

Posted on 04/02/2012 3:59:13 AM PDT by Kaslin

"I don't worry about the Constitution," said Rep. Phil Hare, Democrat of Illinois, at a town hall meeting where voters questioned his support of the legislation that became Obamacare. You can find the clip on Youtube, where it has 462,084 hits.

That was before the 2010 election, in which Hare, running for a third term in a district designed by Democrats to elect a Democrat, was defeated 53 to 43 percent by Bobby Schilling, proprietor of a pizza parlor in East Moline.

A lot of politicians are worrying about the Constitution these days. Liberal commentators were shocked this past week when in three days of oral argument in the lawsuits challenging Obamacare, five Supreme Court justices -- a majority -- asked questions strongly suggesting they think the legislation is unconstitutional.

And so the Constitution -- and the limits it places on Congress' powers -- is once again part of our politics. And will continue to be, whichever way the Court rules.

For 70 years, since the court in 1942 said the government could limit the amount of wheat farmer Roscoe Filburn could grow on his own land to feed his own animals, it has been generally assumed that the federal government's power to regulate the economy had no limits.

That assumption survived in liberal precincts even though the court in 1995 overturned a law banning guns in schools and in 2000 ruled unconstitutional parts of the Violence Against Women Act.

But the arguments, developed by Georgetown Law professor Randy Barnett and others, that it is beyond the powers conferred by the Constitution for Congress to mandate the purchase of a commercial product -- health insurance in Obamacare -- were certainly taken seriously by a majority of Supreme Court justices last week.

And the government's lawyers were unable to answer the questions of both liberal and conservative justices: If Congress can do this, what can't it do?

That question is likely to linger even if the court upholds Obamacare.

For the justices are not the only federal officials who take an oath to uphold the Constitution. So do the president and vice president, Cabinet members and other appointees, and every member of Congress. Phil Hare may not have been worried about the Constitution, but his constituents evidently thought he should be.

That means that every federal official has an obligation to act in line with the Constitution as he or she understands it. And that doesn't necessarily mean obeying Supreme Court decisions.

Many constitutional issues never come before the Supreme Court, which only rules on lawsuits. The Justice Department's Office of Legal Counsel issues rulings based on the Constitution, which are generally regarded as binding precedents by administrations of different parties, even though cases never go to court.

Presidents of different parties regularly issue signing statements, saying that they will not carry out provisions of laws they sign that they regard as unconstitutional. Barack Obama decried signing statements when he was campaigning, but as president he has issued them himself.

Members of Congress may reasonably regard themselves as bound to vote against measures they conscientiously believe unconstitutional. Barry Goldwater did this when he voted against the Civil Rights Act of 1964, even though he had integrated his own business many years before, on constitutional grounds.

Goldwater's constitutional argument, predictably, wasn't accepted by the Supreme Court. And his vote gave the Republican Party an unfair reputation for being anti-civil rights. But I think he was entitled to think his oath required him to vote that way.

Clearly the two parties are divided on the constitutionality of the Obamacare mandate. Polls have shown large majorities of voters think the provision is unconstitutional, though one can wonder whether many have given the matter much thought.

But they're certainly giving it more thought after this week and will likely give it more when the decision comes down.

Voters can reasonably ask candidates for Congress their views on this and other constitutional issues and call on them to vote against measures they consider beyond Congress' constitutional powers.

If the Court overturns Obamacare, Obama may be tempted to attack the court. He should beware. In 1937, Franklin Roosevelt, a few months after landslide re-election, proposed to pack the Supreme Court with new appointees.

Gallup polls showed majorities opposed, and in the next election, proponents of FDR's New Deal lost their congressional majorities. Lesson: Most American voters worry about the Constitution.

TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government
KEYWORDS: 1942; 1964; philhare
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To: ngat

ahhh.. NOW i get what you were saying... need more coffee.. yep, in order for this country to get back on track, all politics have to revert back to local control... find, support and elect strict constitutional people to your state legislature.. (beware of those that say they are conservative, after all GWB said he was a conservative and look at the damage he did over 8 years)..

21 posted on 04/02/2012 5:12:11 AM PDT by joe fonebone (Project Gunwalker, this will make watergate look like the warm up band......)
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To: NTHockey

” and the Supreme Court was set up to be the final arbiter “

Excuse me??

Article III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

22 posted on 04/02/2012 5:13:37 AM PDT by Uncle Ike (Rope is cheap, and there are lots of trees...)
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To: Pontiac

Bump for later

23 posted on 04/02/2012 5:30:03 AM PDT by Pontiac (The welfare state must fail because it is contrary to human nature and diminishes the human spirit.)
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To: Clintonfatigued

> The 2010 elections suggest otherwise.

I hope you’re right. But we still didn’t win the Senate. Reid is still there. McCain is still there. In fact, most senators have no Constitutional compass whatsoever.

And 0bama’s poll numbers are still high enough to pull off a win this Fall.

That a Kenyan openly Marxist, pro-jihadi racist should even be seriously considered for President of the United States, let alone be elected, is pretty strong evidence that a majority is not really more than superficially aware of the Constitution.

24 posted on 04/02/2012 5:51:32 AM PDT by Westbrook (Children do not divide your love, they multiply it.)
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To: Westbrook
Most American voters worry about the Constitution.

Not as many as worry about Dancing With the Stars, the NFL Draft, or the antics of the Kardashians.
25 posted on 04/02/2012 6:00:40 AM PDT by Buckeye McFrog
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To: Candor7
Not only is Obamacare unconstitutional, it is a gateway to the diminution of all other freedosm we have in the Bill of Rights. For example, once Obama care gets going they can charge exhorbitant extra risk premiums say, if you have firearms in your house, because they are a “health risk.”

Exactly right. They'll couch it in reasonable sounding terms. "Hey, we're not taking away your 2nd Amendment right - you can still own a firearm." But it is going to cost you so much that for all practical purposes they'll be disarming the nation. You want to drive that SUV or pickup, yes you have that freedom, but there is an excise/luxury tax on that. Use those old non-green appliances? ditto. Put in that pretty landscaping? Extra water fee. Why are you buying all these unhealthy foods? Extra fee/rate for lack of veggies. Why have you missed most of your "appointments" at the local health collective? Fines. Accessing these internet sites that are on the unapproved list I see? There's a "freedom fee" for that....

They will freely admit what they are doing. They won't exactly call it Marxist/socialist/fascist control but that is what it will be. They'll simply call it "encouraging" modification of behaviors for our own good. To "go green" or help improve all our lives/health/etc. Who could be against that? They're trying to help us, right? Only thing is, their kind of help flies in the face of basic freedom and liberty.

Think it sounds far-fetched? Ha! It is coming if hussein gets a second term, or anyone else like him ever gets into office. The one thing he has shown his fellow Marxist/socialists/fascists is that you can get away with an amazing amount of {expletive} as long as you have a compliant, cooperating, co-conspirator in the MSM. The next fascist, if there ever is another one like the won, will move even further, even faster. That is why we have to stop them now, and never let them back into power like this again.

26 posted on 04/02/2012 6:14:41 AM PDT by ThunderSleeps (Stop obama now! Stop the hussein - insane agenda!)
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To: Buckeye McFrog

> Not as many as worry about Dancing With the Stars, the NFL
> Draft, or the antics of the Kardashians.

You are 100% correct, of course.

Bread and circuses for the hoi poloi.

27 posted on 04/02/2012 6:14:45 AM PDT by Westbrook (Children do not divide your love, they multiply it.)
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To: Uncle Ike

And we can argue Marbury v. Madison until the cows come home. Bottom line is they have expanded “original jurisdiction” to be final arbiter. Finally, since there is no court to hear an appeal from a Supreme Court decision, it is by default the final arbiter.

28 posted on 04/02/2012 6:55:37 AM PDT by NTHockey (Rules of engagement #1: Take no prisoners)
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To: Jacquerie

Thanks for the link to Barnett’s book. I didn’t know he had written that. It’s now on my Amazon “Wish List.”

29 posted on 04/02/2012 7:15:18 AM PDT by ProtectOurFreedom
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To: Westbrook

A very good reason to start promoting the courses being offered for free by Hillsdale College. They do ask for a donation, but it is not tantamount to taking the course. You can order a book, rather large and worth the $35 which is a primer on the US Constitution. Money well spent. I think most parents whose children attend public HS should enroll their HS students in such a class. For one, it seems that it is not being taught any longer in the country’s HSs, unless to home-schooled children, so it might be a start to getting a better understanding of the limits of government, Congress per se, and the president. It’s a real shame that we have come to this place, but it has been deliberately done. The left doesn’t want an informed public. They want to feed them the sound-bites they want them to believe in. Period!

30 posted on 04/02/2012 7:24:54 AM PDT by Shery (in APO Land)
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To: NTHockey; Uncle Ike
Federal courts are not the final arbiter, for Scotus is not supreme over the other two branches.

There is no need to live under judicial tyranny.

Newt makes a very clear argument here.

Here is another scholarly two page pdf from Robert Welch University on how to curb the courts.

31 posted on 04/02/2012 7:27:45 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: ProtectOurFreedom

You are welcome. Barnett is making intellectual waves across law school academia. His major contribution is how courts can implement as practical matters, the necessary and proper clause and the Ninth Amendment.

32 posted on 04/02/2012 7:31:48 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: joe fonebone

Actually, I’d be willing to have a lot of my sacred cows gored, just jam the Federales back within their Constitutional limits...

33 posted on 04/02/2012 7:32:46 AM PDT by Little Ray (FOR the best Conservative in the Primary; AGAINST Obama in the General.)
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To: Little Ray

say HEY.... mister RAY.... what be happinin’...TODAY??

now that the poetic part is over, your statement proves to me that you are no longer a conservative.... welcome to the dark side young jedi... you are now a small l libertarian.... come over to the dark side and complete your training... :)

34 posted on 04/02/2012 7:53:19 AM PDT by joe fonebone (Project Gunwalker, this will make watergate look like the warm up band......)
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To: Kaslin

The Constitution was written in plain language so that We The People could understand it. For example, read the Fourth Amendment and tell me how the courts could allow the TSA or no-knock SWAT raids.

Violations of the Constitution are for citizens to decide, not the Sleeping Nine. If we don’t like a decision, it is incumbent upon us to throw the offenders out in the next election and send in someone ready to fix it.

As for the sad state of Constitutional understanding these days ... what do you expect when Bill Ayers is the grand poobah of public education? The classroom leftists don’t want our kids to know about the Constitution, so they just don’t bother teaching it. Or they indoctrinate the kids with how the Constitution was written by rich white men who owned slaves, so it must be rooted in evil.

I just hope we still have time to fix things without having to burn it all down and start over.

35 posted on 04/02/2012 8:28:51 AM PDT by DNME (Paging SARAH PALIN! Please pick up any white courtesy phone.)
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To: Kaslin

I remember my disappointment at President GHW Bush when he signed “campaign finance reform” saying he didn’t think it was Constitutional - but that was for the SCOTUS to decide.

No bonehead - we elect a President with a particular viewpoint in order that he NOT sign legislation which he thinks is unconstitutional.

36 posted on 04/02/2012 8:39:27 AM PDT by allmendream (Tea Party did not send GOP to DC to negotiate the terms of our surrender to socialism)
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To: allmendream
My husband and I were discussing this just yesterday. They're all sworn in to office under oath, an oath to uphold the Constitution. If SCOTUS finds Obamacare unconstitutional, why are they not penalized, in any way, for violating the Constitution?
37 posted on 04/02/2012 8:45:28 AM PDT by liberalh8ter (Barack has a memory like a steel trap; it's a gift ~ Michelle Obama)
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To: liberalh8ter
Yikes! Why are they not penalized? Because the Constitution has no such provision for penalizing those who voted for legislation later ruled to be Unconstitutional.

That type of thinking is better suited to banana republics - where differences of political opinion are subject to criminal liability.

Our Constitution has no such provision, and we are a stronger Republic for it.

Mass arrests of political opponents is not the American way.

38 posted on 04/02/2012 8:55:17 AM PDT by allmendream (Tea Party did not send GOP to DC to negotiate the terms of our surrender to socialism)
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To: allmendream
Then we keep going down this road. Why bother to take an oath if there's no penalty for violating it? Do you suppose the founders would believe a legislator should be allowed to continue to hold office if he has drafted and passed legislation In direct violation of the Constitution?Is unconstitutional legislation not a glaring indicator of complete incompetence?

My comment was not to say they should be arrested and I don't desire us to be a banana republic however, there should be a penalty for violating the oath of office; especially for violating our governing charter.

39 posted on 04/02/2012 9:29:10 AM PDT by liberalh8ter (Barack has a memory like a steel trap; it's a gift ~ Michelle Obama)
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To: liberalh8ter
The penalty should be enacted at the ballot box.

If a legislator votes for a law that the SCOTUS strikes down as Unconstitutional - the people who elect that legislator should take a long hard look at his philosophy of governance and see if it is compatible with their own views before voting to reelect.

It is not a case that the legislator KNOWINGLY violated their oath. It is up to the SCOTUS to rule on the LAW - not the legislators who passed the law. A 5-4 decision by the SCOTUS should not engender criminal liability for those whose view agreed with only four of the nine SCOTUS judges.

Should a 5-4 decision by the SCOTUS mean criminal liability for the four Justices who agreed with a law that according to the other five was “violating our governing charter”?

Should there only be penalties for legislators who voted for a law that all NINE SCOTUS judges ruled was unconstitutional? Eight or Seven out of Nine? Six out of nine? Five out of nine?

Should questions over the Constitutionality of a law devolve into questions of who gets penalized and to what degree - or is it OK for the SCOTUS to rule on the law - not the legislature?

40 posted on 04/02/2012 9:43:26 AM PDT by allmendream (Tea Party did not send GOP to DC to negotiate the terms of our surrender to socialism)
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