Before the 11th Circuit, a lawyer representing the states suing to rubbish ObamaCare made a good point.
Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers — all other powers, such a the police power, reserved for the people and the states — that the Commerce Clause generally is a “Take-Back” clause that essentially calls bullshit on everything else in the Constitution.
That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or “necessary and proper” to undertake a named power) to the states.
But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it “affects interstate commerce,” which, as is often pointed out, applies to everything.
Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect — a child; a future one-man army of economic activity, labor, investment, and consumption — and even if you don’t, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.
Can we mandate that people have more children? Seems to me we could fix some of the demographic problems with SS and MediCare if only people had more children.
Oh, it’s probably much too late for that; but could we have mandated this 20 years ago? Probably, this new ruling says.
At any rate, the anti-ObamaCare lawyer had a simple question:
If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence —
Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?
In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all — why did no one think to elaborate upon it?
Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?
Answers? Take your choice: