Where The Constitution Is Silent

Reporter: Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: Are you serious? Are you serious?

Reporter: Yes, yes I am.

Speaker of the House Nancy Pelosi, when asked if the Constitution permitted the Congress to require Americans to purchase health insurance.

Over the last few weeks, as the Supreme Court has started to perform its actual duties (Ensuring the federal government stays in its constitutional limits), I’ve found some things not curious, but typical. The liberals, Democrats, and a significant number of Republicans (Better called Republicans In Name Only) have charged in to secure the power of the federal government. The fact the Constitution limits the power of the central government to select items has at best been a hindrance, more a minor inconvenience to the Swamp in Washington.

There was a time when we actually took the Constitution seriously. I doubt anyone will question the benefit of the Interstate Highway System, which was inspired by the German Autobahn. However, the Eisenhower administration actually looked into a quaint question: Is this constitutional? Yes, as part of the requirement to provide for the common defense:

SEC. 108. NATIONAL SYSTEM OF INTERSTATE AND DEFENSE HIGHWAYS.

(a) INTERSTATE SYSTEM.—It is hereby declared to be essential to the national interest to provide for the early completion of the “National System of Interstate Highways”, as authorized and designated in accordance with section 7 of the Federal-Aid Highway Act of 1944 (58 Stat. 838). It is the intent of the Congress that the Interstate System be completed as nearly as practicable over a thirteen-year period and that the entire System in all the States be brought to simultaneous completion. Because of its primary importance to the national defense, the name of such system is hereby changed to the “National System of Interstate and Defense Highways”. Such National System of Interstate and Defense Highways is hereinafter in this Act referred to as the “Interstate System”.

Now after the defeat of the left in Dobbs, there is movement in the Congress to federalize abortion access:

The first bill — the Women’s Health Protection Act — passed in a 219-210 vote, clearing the House for a second time in the past year. The lower chamber previously approved the measure in September, but it was twice blocked in the Senate…

…The legislation seeks to ensure that people have access to abortion nationwide by codifying the right to the medical procedure into federal law….

…The House passed the second bill — titled the Ensuring Access to Abortion Act— in a 223-205 vote…

…The legislation protects women who travel to another state to receive an abortion if their home state prohibits the medical procedure. And in states where abortion is lawful, the bill seeks to make it illegal for facilities to limit access to the medical procedure for individuals who arrived from out of state.

Additionally, the measure includes a provision to protect people who assist others in receiving an abortion in a state where they do not reside. It also shields the state-to-state transportation of abortion drugs that have received approval from the Food and Drug Administration…

But is this disregard of federalism something new? Absolutely not. The history of the Democratic party, beginning with the Progressive Era, but particularly since FDR, has been of one abuse of the limits of the Constitution after another. The attacks have come from multiple directions:

The federal courts (See Plessy v. Ferguson, Korematsu, Roe v. Wade, Planned Parenthood v. Casey, NFIB v Sebelius, and Obergefell v. Hodges.

The bureaucracy: See West Virginia v. EPA, where the Obama EPA issued directives to states to limit carbon emissions, although the Clean Air Act does not empower the agency to restrict carbon; Or where the EPA is attempting to restrict private us of lands under the Clean Water Act. The fact the law empowers them only on navigable waters has not stopped them (A case on this issue has been accepted by SCOTUS, will likely be heard this fall).

When all else fails, try a new form of gaslighting. Just say I can do it, I don’t need permission. The classic case is the Iran Nuke Deal.

The Iran Nuclear Deal of 2015 was a treaty negotiated by six parties (China, France, Russia, the United Kingdom, the United States and Germany, with input from the European Union) and Iran. The agreement (Formally known as the JCPOA, or Joint Comprehensive Plan of Action) agreed to relax sanctions and a weapons embargo on Iran for promises of limits to their nuclear arms program.

It can be argued how well the plan was implemented or was it effectual, but one thing cannot be argued. It was a treaty between multiple nations and the United States. And per Article 2 of the Constitution, this requires “…the Advice and Consent of the Senate…provided two thirds of the Senators present concur,”

This minor inconvenience was quickly disposed of, not by the Democrats, but the GOP. Senate Foreign Relations chair, Bob Corker, allowed a bill (For some reason quickly signed by Obama) allowing the Congress to have “input” into the nuke deal. And when Obama vetoed their “input,” it required the Congress to vote two thirds to defeat it, not two thirds to approve the treaty. I wonder what these great statesmen would be saying if President Reagan asked for the same lack of “input” by the Senate when he presented the Intermediate Forces Agreement?

Too many Democrats (And a significant number of Republicans) see the restrictions of the Constitution as a hinderance on their enlightened governance. No, it’s a feature of a good government, to check the power of a crazed group of people.

Senator Ted Cruz recently got people excited when he said the court ruled incorrectly in legalizing same sex marriage (Obergefell v. Hodges). Justice Thomas said something similar in his concurring opinion on the Dobbs case, saying the court should look at correcting earlier mistaken rulings:

Then, he took aim at three other landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.

Again, the court has taken actions that have invalidated the acts of the various states and taken the belief they can endow men with certain inalienable rights. No question, there are many justices (Politicians period) who see themselves as the Creator. And they want the power to rule over all in this nation without question.

One of the best classes I took in college was constitutional law. The professor, after two semesters of history and review of multiple cases, asked the central question brought up by rulings, and later overrulings, of the court. “Do you want rule by majority, or by five judges in a court in the capital? “ Well put, and my answer is, after a lifetime of study and experience, neither.

A democracy is, at its core, mob rule. A republic has majority rule, with respect for the minority. And in our federal republican system, the courts should act as the referee in the process. Only act where there is plain infraction, and defer to the legislature, where the constitution is silent.

Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.

Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers

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