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Americans Are Worrying About the Constitution Again

A Commentary By Michael Barone

Monday, April 02, 2012

"I don't worry about the Constitution," said Rep. Phil Hare, Democrat of Illinois, at a town hall meeting where voters questioned his support of the legislation that became Obamacare. You can find the clip on youtube.com, where it has 462,084 hits.

That was before the 2010 election, in which Hare, running for a third term in a district designed by Democrats to elect a Democrat, was defeated 53 to 43 percent by Bobby Schilling, proprietor of a pizza parlor in East Moline.

A lot of politicians are worrying about the Constitution these days. Liberal commentators were shocked this past week when in three days of oral argument in the lawsuits challenging Obamacare, five Supreme Court justices -- a majority -- asked questions strongly suggesting they think the legislation is unconstitutional.

And so the Constitution -- and the limits it places on Congress' powers -- is once again part of our politics. And will continue to be, whichever way the Court rules.

For 70 years, since the court in 1942 said the government could limit the amount of wheat farmer Roscoe Filburn could grow on his own land to feed his own animals, it has been generally assumed that the federal government's power to regulate the economy had no limits.

That assumption survived in liberal precincts even though the court in 1995 overturned a law banning guns in schools and in 2000 ruled unconstitutional parts of the Violence Against Women Act.

But the arguments, developed by Georgetown Law professor Randy Barnett and others, that it is beyond the powers conferred by the Constitution for Congress to mandate the purchase of a commercial product -- health insurance in Obamacare -- were certainly taken seriously by a majority of Supreme Court justices last week.

And the government's lawyers were unable to answer the questions of both liberal and conservative justices: If Congress can do this, what can't it do?

That question is likely to linger even if the court upholds Obamcare.

For the justices are not the only federal officials who take an oath to uphold the Constitution. So do the president and vice president, Cabinet members and other appointees, and every member of Congress. Phil Hare may not have been worried about the Constitution, but his constituents evidently thought he should be.

That means that every federal official has an obligation to act in line with the Constitution as he or she understands it. And that doesn't necessarily mean obeying Supreme Court decisions.

Many constitutional issues never come before the Supreme Court, which only rules on lawsuits. The Justice Department's Office of Legal Counsel issues rulings based on the Constitution, which are generally regarded as binding precedents by administrations of different parties, even though cases never go to court.

Presidents of different parties regularly issue signing statements, saying that they will not carry out provisions of laws they sign that they regard as unconstitutional. Barack Obama decried signing statements when he was campaigning, but as president he has issued them himself.

Members of Congress may reasonably regard themselves as bound to vote against measures they conscientiously believe unconstitutional. Barry Goldwater did this when he voted against the Civil Rights Act of 1964, even though he had integrated his own business many years before, on constitutional grounds.

Goldwater's constitutional argument, predictably, wasn't accepted by the Supreme Court. And his vote gave the Republican Party an unfair reputation for being anti-civil rights. But I think he was entitled to think his oath required him to vote that way.

Clearly the two parties are divided on the constitutionality of the Obamacare mandate. Polls have shown large majorities of voters think the provision is unconstitutional, though one can wonder whether many have given the matter much thought.

But they're certainly giving it more thought after this week and will likely give it more when the decision comes down.

Voters can reasonably ask candidates for Congress their views on this and other constitutional issues and call on them to vote against measures they consider beyond Congress' constitutional powers.

If the Court overturns Obamacare, Obama may be tempted to attack the court. He should beware. In 1937, Franklin Roosevelt, a few months after landslide re-election, proposed to pack the Supreme Court with new appointees.

Gallup polls showed majorities opposed, and in the next election, proponents of FDR's New Deal lost their congressional majorities. Lesson: Most American voters worry about the Constitution.

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics.

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