Is ObamaCare Constitutional? Which Constitution?

If you’ve been paying attention recently you’ve seen the following sequence:

  • The challenge of 26 states as to the Constitutionality of the  Affordable Care Act has reached the Supreme Court with three days of testimony before the court.
  • The President pushed back with an attack on the Court claiming that the “ … Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
  • The 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

So with all of this talk of “constitutionality” I must ask the question; which Constitution? Are we all talking here about the Constitution crafted in 1787 by George Washington, James Madison, Roger Sherman et al? Or are we talking of the shadow Constitution developed by Woodrow Wilson, Franklin Roosevelt and others including some among the current Obama administration? Let us examine the question.

Woodrow Wilson’s view of the Constitution (Madison’s)

Wilson maintains that both the Declaration of Independence and the Constitution have outlived their usefulness—and their now outmoded truths. The scientific facts, Wilson coldly concludes, call for cooperation among the parts of government, not checks against one another.

Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All the progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle….

Wilson’s Darwinian constitutionalism means that an evolving human nature wipes away the need for the protection of individual rights by the separation of powers. Liberated from the old constraints demanded by an unchanging and flawed human nature, a government of now unlimited powers is unleashed to deal with the new political and economic conditions of corporations and political bosses. Read on from portions of Wilson’s 1912 campaign speech “What Is Progress?”

… as this interesting man talked, that the Constitution of the United States had been made under the dominion of the Newtonian Theory. You have only to read the papers of The Federalist to see that fact written on every page. They speak of the “checks and balances” of the Constitution, and use to express their idea the simile of the organization of the universe, and particularly of the solar system,—how by the attraction of gravitation the various parts are held in their orbits; and then they proceed to represent Congress, the Judiciary, and the President as a sort of imitation of the solar system.

They were only following the English Whigs, who gave Great Britain its modern constitution. Not that those Englishmen analyzed the matter, or had any theory about it; Englishmen care little for theories. It was a Frenchman, Montesquieu, who pointed out to them how faithfully they had copied Newton’s description of the mechanism of the heavens.

The makers of our Federal Constitution read Montesquieu with true scientific enthusiasm. They were scientists in their way—the best way of their age—those fathers of the nation. Jefferson wrote of “the laws of Nature”—and then by way of afterthought—“and of Nature’s God.” And they constructed a government as they would have constructed an orrery—to display the laws of nature. Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of “checks and balances.”

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their co-operation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.

All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776. Their bosoms swell against George III, but they have no consciousness of the war for freedom that is going on today.

The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstances of the day in which it was conceived and written. It is an eminently practical document, meant for the use of practical men; not a thesis for philosophers, but a whip for tyrants; not a theory of government, but a program of action. Unless we can translate it into the questions of our own day, we are not worthy of it, we are not the sons of the sires who acted in response to its challenge.

What Wilson misses entirely here is the notion that the founders did indeed grasp the true nature of man, and the true nature of government. They were not drafting a Constitution according to scientific thought; either Newtonian or Darwinian.  What they were coming to grips with was the nature of “man” and his natural bent towards tyranny. Not science but rather the question “can man govern himself?” and if so how. The checks and balances Mr. Wilson so glibly discards and ridicules were intended to safeguard individual human liberty and dignity against the tyranny of a government totalitarian in its very nature.

History shows us that until the American Constitution, all governments were autocratic and total in nature; whether it be government by kings, queens, Caesars, emperors or feudal Lords, the governed populace were ruled by tyrants; some better than others, but tyrants none the less. Wilson’s self inflated idea of himself and other Progressives as being so enlightened as to be able to cast off checks and balances and government “of the people, by the people and for the people” can only grease the skids back to a totalitarian form of government.   

So, it is clear in the writings of Wilson that he has little or no regard for the Constitution or the Declaration, and in effect has formulated his own shadow constitution.

Franklin Roosevelt’s view of the Constitution (Madison’s)

FDR’s view of the Constitution can perhaps be summarized by his idea of a Second Bill of Rights as follows:

‘We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ ” And evoking Jefferson and Lincoln, Roosevelt contended that, “ ‘In our day these economic truths have become accepted as self-evident,’ and, ‘We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.’ ” This Second Bill of Rights included, he proffered:

  • The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
  • The right to earn enough to provide adequate food and clothing and recreation;
  • The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
  • The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
  • The right of every family to a decent home;
  • The right to adequate medical care and the opportunity to achieve and enjoy good health;
  • The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
  • The right to a good education.’

A lot to like here, no question.

The question here would seem to be how can such an agenda be accomplished, and more to the point, what should American Constitutional (Madison’s)  government’s role be in such an agenda?

Many of these rights imply an active government role, but pose no limitation on that role. Thus you could easily see an absolutist tendency in implementation; for example:

The right of every family to a decent home.  Who defines the  parameters here? It could only be government, and since this is a “right” at the same level as in the Bill of Rights, that government would be the Federal government.   This has great potential for abuse, and is the sort of thinking that eventually led to the “Community Reinvestment Act” which many believe led to a demand by the government to require a loosening of lending standards and thus the sub-prime mortgage crisis of 2008. Do you own homework on this.

None of the rights in the Second Bill address the costs associated with the new rights, nor the potential liberty lost, nor do they raise the issue of secondary and tertiary rights emanating from them, nor do they address the Constitutionality (again, Madison’s Constitution) questions raised.

This Second Bill of Rights seems to offer a huge target of opportunity for abuse by overzealous politicos, and a target our founders sought to prevent.

The Obama Administration’s view of the Constitution (Madison’s)

Cass Sunstein, is an American legal scholar in the field of constitutional law at the University of Chicago and currently is the Administrator of the White House Office of Information and Regulatory Affairs. He says

“America’s public institutions were radically transformed under Roosevelt’s leadership. The federal government assumed powers formerly believed to rest with the states. The presidency grew dramatically in stature and importance; it became the principle seat of American democracy. A newly developed bureaucracy, including independent regulatory commissions was put into place. The foundations of the transformation are best captured in a changing understanding of rights, often requiring helping hands … By 1944, Roosevelt argued, the real task was to implement the second bill [of rights] …  We live under Roosevelt’s Constitution whether we know it or not. The American Constitution has become, in crucial respects, his own.”

Without the enforceable limitations imposed by the Constitution (again, Madison’s)  it is not beyond reason to envision  America living under a Constitution much like that of the USSR, some of which follows:


  • ARTICLE 118. Citizens of the U.S.S.R. have the right to work, that is, are guaranteed the right to employment and payment for their work in accordance With its quantity and quality.  The right to work is ensured by the socialist organization of the national economy, the steady growth of the productive forces of Soviet society, the elimination of the possibility of economic crises, and the abolition of unemployment.
  • ARTICLE 119. Citizens of the U.S.S.R. have the right to rest and leisure. The right to rest and leisure is ensured by the reduction of the working day to seven hours for the overwhelming majority of the workers, the institution of annual vacations with full pay for workers and employees and the provision of a wide network of sanatoria, rest homes and clubs for the accommodation of the working people.
  • ARTICLE 120. Citizens of the U.S.S.R. have the right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state expense, free medical service for the working people and the provision of a wide network of health resorts for the use of the working people.
  • ARTICLE 121. Citizens of the U.S.S.R. have the right to education. This right is ensured by universal, compulsory elementary education; by education, including higher education, being free of charge; by the system of state stipends for the overwhelming majority of students in the universities and colleges; by instruction in schools being conducted in the native Language, and by the organization in the factories, state farms, machine and tractor stations and collective farms of free vocational, technical and agronomic training for the working people.

President Obama himself has grandly expressed his distain of the Constitution (Madison’s)  by proclaiming he will govern without Congress (We can’t wait!). He also said just this week of the Supreme Court “ … [the] Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” 

So we should keep in mind during this Supreme Court/ObamaCare case, and throughout the remaining election season, that we have two distinct and different Constitutions in play. Which do you prefer?

My thanks to Mark Levin for laying out these issues so clearly:
Liberty and Tyranny

Don Johnson – April 2012


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