David Frum...Wrong And Insulting On The Constitutionality Of ObamaCare

Via Hot Air's Headlines, David Frum provides me with a wonderful belated Christmas present...the chance to beat on him.

Our man Frum is back and arguing that objections to ObamaCare (specifically the individual mandate) on constitutional grounds shows what Neanderthals conservatives are. In doing so he demonstrates that he hasn't actually read the Constitution lately or just doesn't understand it. I'm not talking about interpretive differences upon which reasonable people disagree (there are those too) but one big glaring factual error.

Let's see if you can spot it!

DeMint's and Ensign's argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution speaks only of a Supreme Court, Congress has no power to create lower federal courts. Since the Constitution does not mention a national bank, Congress may not charter banks.

No lower federal courts? How could the founders have been so stupid? Did those idiots think that we'd only need one court? No wonder Frum doesn't see any reason to pay attention to their outdated design. I mean they didn't even provide for lower, one might say 'inferior', courts!

Oh wait, they did. Yep, right there next to that Supreme Court Frum knows so much about. Hell, they even provided for the staffing of those non-existnat courts.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Okay, enough of the gotcha stuff. Let's look at Frum's other arguments.

First he says, hey this buy insurance or else thing is nothing new.

The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65.

Again thanks for playing Dave but...WRONG. This is an apples to oranges comparison when made with the proposed individual mandate. Why? Medicare is a tax levied by the government which then provides those who pay in with a benefit. While one can argue whether this is an appropriate exercise of the 'tax and spending' power but it's not the same as requiring individuals to purchase a product from a private entity.

You'd think someone as smart as Frum thinks he is would get that difference. The case he sites in his piece (Helvering v. Davis) is all about the constitutionality of the Social Security tax. Alas...

Tell you what Dave, why don’t you run along and find me an actual example where the federal government mandates people buy a product on the open market as a condition of not going to jail. I’ll wait. Actually, I won’t because you can’t and I’ll be here forever.

Frum also argues that we really just need to get over this whole limited government thing.

The theory exerted a lively influence upon the politics of the 1790s, when it was enthusiastically promoted by the party led by James Madison and Thomas Jefferson. The heart went out of the theory in 1805, when then President Jefferson purchased Louisiana from the French in 1805. The Constitution had said nothing about THAT either.

The Civil War finished off the theory for all practical political purposes. Since 1865, the doctrine of enumerated power has subsisted at the remote margins of American politics. Are Republicans proposing now to resurrect the constitutional theories of Roger Taney?

Really? There was no attempt to reign the government in after the Civil War? Now, there's no doubt that the courts have broadened the reach of the government based on the 14th Amendment but it seems there were some fairly heated debates about the scope of government authority under the enumerated powers theory during the administration of FDR (Schecter v. US anyone?).

Oh and by the way, notice the reference to Roger Taney? Yeah, that's Frum's weasel way of calling DeMint, Ensign and er, me, racists.

In case you aren't familiar with the name, Taney was the Chief Justice who wrote the decision in Dred Scott v. Sandford, one of the worst Supreme Court decisions in history.

For a guy who says he wants to lead conservatives, he's pretty quick insult them.

And once again Frum is simply wrong on the facts.

As Justice Antonin Scalia has pointed out many times (including in his dissent in Planned Parenthood v. Casey), Dred Scott, was an awful decision which did great harm to the Court and the nation.

When it comes to arbiters of conservative legal traditions and theories, I'll go with Scalia over Frum every time.

Again, I’ll wait while Frum goes and finds an actual conservative legal scholar who yearns for the day when we embrace the constitutional theories of Roger Taney.

Now, here's a point where I agree with Frum...the idea of restraining the government based on a limited powers argument is an anachronism. Most Americans have no real understanding of the Constitution or the concepts upon which this country was founded. An overwhelming number of Americans are far to willing to accept any government action as legitimate even if it involves trading a little freedom for the promise of some government goodies.

I wish it weren’t so but it demonstrably is.

Where I part with Frum is what we should do about that. He's clearly of the opinion that we can't (and maybe shouldn't) do anything about it. He seems to be of the opinion that for conservatives to succeed we need to surrender to an ever expanding government. Maybe we can move it a bit to the right as it grows but never stop it.

Well, if that's success, failure can't be much worse.

This is a fight worth having. When it comes to ObmaCare, we're not even trying to reverse the tide of constitutional overreach, just stop the latest incursion of government into our lives.

As Mark Steyn has repeatedly said, turning your health over to the government reconfigures the relationship between the state and the individual. Once the state is responsible for your physical well being, there is simply no aspect of your life that is off limits.

This is a fight Frum isn't up for.

Again, if the choice is between Steyn and Frum, well I stand with Steyn.

When the DeMint constitutional point of order came up in the Senate, all 39 Republicans present voted to uphold the challenge. I really think that Mr. Frum needs to consider that when he’s to the left of Susan Collins, Olympia Snowe and George Voinovich, you may want to rethink your position and your fitness to be a conservative leader. Of course when your sense of self worth is as large as Frum’s, you never rethink anything, you just attack those too stupid to agree with you.

posted by DrewM. at 09:18 AM

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