THAT IS the real question the Supreme Court is expected to decide today. Do the enumerated powers mean anything? Is there anything Congress cannot do when it decides, in its wisdom, that it should be done?
The progressives among us favor unlimited majoritarian power and correctly see it as the way to accomplish their utopian ends -- in modern parlance, the fundamental transformation of America. (When that fails, as it always does, they flirt with the next way: authoritarianism.)
Conservatives, who instinctively and correctly distrust utopianism, see that unlimited majoritarian power means the end of distinctive, exceptional character of America, where government serves the people and the people do not serve the government.
If, against the tide of speculation, the high court upholds Obamacare, however, this final indignity against our wounded constitution will merely be the coup de grace. Doctrines of limited government and enumerated powers already die of a thousand cuts. For good or ill, Congress had no constitutional authority to establish the Department of Education, for instance. But having been established, it cannot be abolished. Such is the nature of government. We have amended the Constitution by majoritarian consent, and it cannot be unamended.
The Obamacare decision will be the third great decision of the post-World War II era. The first was Brown v. Board of Education. The reasoning has never stirred much admiration, but the decision was right. Whatever the equal protection clause of the Fourteenth may not mean, it clearly means -- and was intended to mean -- that states of the union may not exercise invidious discrimination against black people. Herding them into separate schools, poorly financed, is invidious discrimination.
The second big case of our time was Roe v. Wade. It is important in its own right, but also as an emblem of something larger -- overreaching by the Supreme Court under the so-called incorporation doctrine to invalidate one state law after another. The Supreme Court is today the national school board, police review board, moralist, theologian, and nanny. Some of the incorporation-doctrine decisions were no doubt good, as policy, but few were constitutionally sound.
Now comes Obamacare. The commerce clause is a constitutional doctrine than which few are less well known, understood, or appreciated. It is the door through which the congressional mischief-makers and their clever allies in academia and journalism have eroded our liberties, made life a daily battle with complexity, tied our economy into knots, borrowed every dollar the Chinese would lend us, and set our nation on the path to bankruptcy. Our children and grandchildren will be less prosperous, less secure, and less happy as a result. A proper reading of the commerce clause would have prevented all that, but it's too late now.
A proper holding on Obamacare will slow, not reverse, this momentum. It will merely postpone the day. We will go back to our lives, but the utopianists will never cease chewing on the foundations of the good America in search of the perfect America. Enough Americans are already clients of the welfare state to guarantee the majorities they need -- if not in this election, then in the next one. In time, most of what Obamacare sets out to do will be done.
Now you know.
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It is necessary to say these things because most preview stories in today's newspapers -- certainly in our local newspaper -- and on television cast the matter as a political question (how will it affect the president's electability) or as a question of presidential history (how will it affect his legacy).
Neither matters, at least beyond the moment. What matters is what the case means to constitutional health of our beloved nation and the now-unfashionable ideas on which it was founded and grew strong and prosperous.
