[Editorial Note: I’ve had a lot of requests for a transcript of my monologue on the radio this morning. Well, here you go.]
Article 1, Section 8, Clause 3 of the Constitution states, “Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”Insurance contracts are not within the stream of interstate commerce. That’s why when you buy insurance for your house, your car, or your health you deal with state insurance commissioners, not a federal insurance czar.Congress does not really regulate insurance contracts. They are contractual obligations at the state level, not goods and services in the stream of commerce. So can Congress then force you to buy a product not in interstate commerce to regulate interstate commerce, when insurance regulations are clearly within the purview of the states?As Leon Wolf noted the other day, “Just to speak the concept aloud is to be struck dumb by the breathtaking arrogance of Congress in passing this bill, and the disregard for the Constitutional limits on their power. Of course, States (being entities of general powers as opposed to enumerated powers) might certainly decide to do this, if that is their prerogative, but there is absolutely no justification to be found within the Constitution for the breadth and scope of this action.”Think about that. This is part of the problem we have these days as we keep talking past each other on issues. The left seems to think that Congress can do whatever the heck it wants to do on any issue. What they forget is that Congress actually only has 18 things it is allowed to do under the constitution. That’s it. It is not so general as to give Congress plenary power to do anything it wants. It never has. I’m willing to say that a lot of things Congress does it should not be doing under the Constitution, but the Supreme Court has let them slide. We have let them slide. It has been a bipartisan affair.When we have a Constitution that says Congress can do only 18 specific things and we decide instead that Congress can do anything it wants to, we have a problem. Why? Because we also have 50 states — 57 if you voted for Obama — and the states can do virtually anything they want to you or for you because the federal government is a limited government of limited powers, but the states have plenary powers outside those 18 things set aside for Congress.Over time though, we have evolved legally without amending the constitution according and we have flipped around this notion and now Congress can do everything and states can do very little, except when they can do a great deal from crime to education to fixing roads to general welfare issues. That goes against our constitutional set up. Consequently, we have gone beyond a point where you can sit down and read the constitution and really understand what the heck Congress can and cannot do. And this is coupled with burgeoning statism at the local, state, and federal level with little restraint — elections being nearly irrelevant given gerrymandering, campaign finance laws, and the extremely high re-election rates even when 89% of the country says we should throw the bums out.We have reached a point where we have to rely on men and women in black robes and lawyers to tell us what we can and cannot do. A society begins to breakdown when the average citizen can no longer understand what his government can and cannot do without relying on men and women in black robes and lawyers all of whom have as many opinions to that question as there are opinions.Then you cross into the territory where we have already arrived. A Congress can pass a 2,700 page piece of legislation to do something Congress arguably cannot do by making states do it, which is arguably unconstitutional. The legislators who voted on this 2,700 page piece of legislation, when asked, have no clue what is in the legislation.You cannot sustain a free republic when the citizens who are expected to comply with the law have no understanding of what the law is or how their government works without paying the gnostics to enlighten them and the people who write the law do not know what is in the law.We have, because reasonable societies in order to maintain their society have to have it, a doctrine in our courts that says “ignorance of the law is no defense.” That means, simply put, that you cannot go into court and say “I did not know it was against the law” when you breach the law. Well, when those who are writing the law are ignorant of what the law is, how then can we expect the citizens to know what the law is? And if we cannot expect the Congress to know what the law is that they are writing and we cannot expect the citizens to know what the law is they are following, how then can we have law itself? The legal costs of doing business become the legal costs merely of living, but while we may get universal health care coverage, we will not get universal free legal representation to help us navigate our lives — at least not until we are arrested for running afoul of the laws, rules, and regulations neither the Congress nor we know exist nor understand in any meaningful way.How then can we have a constitutional structure that we all agree on when none of us can sit down and read it and understand it? We have reached a level of constitutional gnosticism where we have to have special knowledge to understand the way the world works and liberty is consequently in jeopardy. One must go to law school to acquire the knowledge to understand the way the world works and even after acquiring that knowledge, it is still up for debate based on ideology shifting with the whims of a majority where rights become more about action and less about restraint.This is not sustainable for a free society. A free society cannot work if its citizens cannot understand or work under society’s laws without hiring lawyers to live their lives for them. That leads to Obamacare. When Nancy Pelosi was asked where in the constitution the power was for Congress to enact Obamacare, her response was, “You’ve got to be kidding me.”Well, we are not kidding. We want to know where Congress gets its power. Article 1, Section 8 — which one of those 18 things gives Congress the right to force us to buy insurance that is outside the stream of interstate commerce? And if Congress can force us to buy products outside the stream of interstate commerce, why then can’t Congress force us to buy products inside the stream of commerce? Here now we arrive at the troubling conclusion. If Congress can force us to do things outside of its powers, then it very clearly can force us to do things inside its powers. And if Congress can compel us to do things, why then do we have a thirteenth amendment prohibiting slavery?Isn’t the logical conclusion of all of this, however radical some might suggest it is, that we then become slaves to the government? If Congress can compel us to do things we do not want to do merely because Congress says we must in the name of the national interest regardless of those 18 clauses in Article 1, Section 8, then are not we slaves to Congress — or more simply put, slaves to a tyrannical majority?And Congress is not compelling us to do things such as avoiding the commission of crimes or filing and paying taxes. Congress is ordering us to buy a product Congress says you must have if you want to live. There is very literally no opt out other than death. A Congressional majority says I must take an action — not just refrain from acting, but actually act in a way Congress demands. It is “you go buy insurance. You go buy this type of light bulb. You go buy this type of food. You go get this type of job, whether you want it or not. You work in a certain way. You don’t get to choose.” Congress makes a determination of what benefits interstate commerce and compels you to act accordingly.I don’t buy slippery slope arguments generally, though a lot of conservatives do. But I can at least see where the slippery slope ends should we slip down it. If Congress can compel us to take actions for our own good, whether or not we agree and that are outside the jurisdictional powers of Congress, then Congress can compel us clearly to buy things inside interstate commerce that we do not want to buy. And if Congress can compel our actions in that way, then Congress can compel our actions ad infinitum.At some point the thirteenth amendment becomes meaningless because we do become slaves to government. Instead of government working for us, government becomes our master. And once the buck is passed to unelected bureaucrats who stay long after we have voted out the politicians who imposed this legal regime on us, even the basic right to control our destiny is removed from our hands.It no longer is “We the People” in the preamble to the Constitution, it becomes “We the Congress” or “We the Majority.” And our free society dies by that dreaded tyranny of the majority the left so long decried and now embraces to advance its own agenda in ignorance and defiance of the rights of men and women to understand how their world works without paying the Gnostic Gospel’s price for that special, fundamental, very basic right to know.