Friday, April 6, 2012

"Parchment Barriers" and Worse

"Parchment barriers" is what founder James Madison called mere paper protections against all real threats to liberty, paper protections like a catalogue of rights and, presumably, even a written constitution itself.  He had little faith in them.  Instead, he knew, as all the Framers knew, even when they insisted on writing it all down nevertheless, that genuinely secure rights are those that are inscribed indelibly on the hearts and minds of free men.  It is only when they are written there that we can ever hope to stand successfully against all the inevitable encroachments, to include even the sustained, drip-drop variety we Americans have witnessed and experienced and grown accustomed to since the New Deal at least.

Which brings me to the current debate over the constitutionality of Obamacare.  I worry that too much of our resistance to it is beginning to rest on just such "parchment barriers", and worse.

The Commerce Clause, around which so much of the current debate is spinning, is found, in case you didn't know it already, in Article I, Section 8 of the Constitution.  There, the powers of Congress, "few and defined" mind you, are listed.  It reads--are you ready?-- thus:  "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

That's it.

That's it, I say, but over the years, those few words have been used nevertheless to authorize an ever-expanding government, potentially a government without limits, which effectively turns our  Constitution on its head.  Think of it, a document that was conceived and committed to writing in order, chiefly, to secure our liberties, is now understood, and seriously so, as a vehicle for authorizing threats to them.  Oh, to be sure, the authorization is all for presumably good reasons like providing universal health care, but it threatens our liberty in the process nonetheless. 

Part of the reason for this is that as we have abandoned in far too many cases now the plain meaning of its words, or, when the words are unclear, the context provided by the whole of the document, a context that would clarify those otherwise ambiguous words, not to mention the even larger context afforded by a just consideration of the circumstances under which they were writtten in the first place.  Madison would doubtless cluck his tongue and say, "Such are mere 'parchment barriers.'"

But it's worse than just that, and ironically so.  Even as we have loosened ourselves from the plain meaning of the words, we have shackled ourselves to increasingly strained interpretations of the same, interpretations of the kind that would make a Talmudic scholar's head hurt, but of the kind we have nevertheless gotten used to.

For example, from the reports of the hearings before the Court last week we learned that at one point Justice Stephen Breyer helped make the Government's case for them when he suggested that perhaps simply by virtue of being born one enters the market for health care and therefore the Commerce Clause would apply.  To which, according to Charles Krauthammer anyway, the attorney challenging Obamacare responded with something like: "If birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate 'every human activity from cradle to grave.'”

Yes!  Score one for our side.  Go Team, Go!

Meanwhile, the rest of engaged America, like a crowd at a tennis match, turns its collective head toward the other end of the court to see if our opponent is able to make just as witty a reply.

Is this really what it's come down to?  Does the security of our liberty now rest not only on what have proved to be flimsy "parchment barriers" after all, but, even worse, on us anxiously awaiting, fingers crossed, for what is little more than the good fortune of having a smart lawyer engage in clever repartee with a hostile judge over whose interpretation of a small clause in the Constitution will hold the day?  Good grief.

If our liberties were truly written still on our hearts and minds instead of on paper alone, we would not be indulging in this spectacle at all and no one would have dared challenge them in the first place. Indeed, no one would have even thought to do so.

No comments:

Post a Comment