Judge Andrew Napolitano, writing in today’s Wall Street Journal brings up a question that ought to be taken seriously: where is there any constitutional authority for Congress to do the things proposed in Obama’s health care reform legislation? He mentions that he posed that question to a House Democrat and got the answer, “Well, where does the Constitution prohibit it?” That retort betrays a misunderstanding (perhaps deliberate) of the function of the Constitution. It was written to specify what the government could do, not to carve out a few exceptions to the general rule of governmental power.
Napolitano discusses the awful impact of the Supreme Court’s Commerce Clause decisions, particularly the disastrous 1942 ruling in Wickard v. Filburn, where the Court said it was permissible for the feds to fine a farmer who had grown “too much” wheat (according to government regulations) on his land and then consumed it on his own property. No commerce of any sort was involved, yet the Court said the feds had authority over him because he might have purchased some wheat in interstate commerce if he hadn’t be naughty and grown more than he was allowed to.
That was a misapplication of the Commerce Clause, which was meant to keep the states from putting up barriers to commerce and not to allow minute federal intervention into the details of farming and producing goods for sale. But on the other hand, Congress has been content to allow the states to interfere with interstate commerce in insurance. If it weren’t for that, we’d have a competitive market for health insurance and that would reduce the so-called crisis of the uninsured. But that’s probably why the politicians are content — it gives them another excuse for meddling.
