Frum = dumb?
On Christmas Day, while most Americans were celebrating the holiday with their loved ones, columnist David Frum – so-called conservative – had an article published at The Week Online that probably would have served him better had it gone unnoticed. It was his attempt to explain why Obamacare is, in fact, constitutional, despite assertions by some Republicans (Senators Jim DeMint and John Ensign, specifically) that it is not.
I derive no great pleasure in pointing out how embarrassing Frum is on this issue, or how stupid he makes himself sound. I get no kick out of saying how ill-informed and weak this article is, or how laughable he makes himself out to be in the name of “conservatism.” It doesn’t do my heart any good to highlight his intellectual vapidity.
Frankly, I happen to believe passage of this bill would be unconstitutional, but that is not my over-arching point here. Rather, this is about the carelessness of Frum’s assertions and his egregious misstating of facts. This is about an opinion piece from a so-called “conservative” perspective so badly done, it would almost have to be a parody. It’s about a poorly constructed, terribly presented, ill-conceived joke of an article coming from someone who should have stayed away from his word processor last week.
I’ll focus on two small passages.
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.
To begin with, the Constitution does grant Congress the power to create lower federal courts – in the plainest of English (Article III, Section I):
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.
This is one of those “gotcha” moments that is so obvious, so conspicuous, so void of any challenge in counter-arguing his allegation, that it isn’t even fun to take the time to point it out.
Not exactly hidden in the eminations and penumbras, is it?
As far as the Constitution not mentioning a national bank, Frum is absolutely right. In fact, Thomas Jefferson took what would today be called the “strict constructionist’s” position in opposing Alexander Hamilton’s initiative of establishing the First Bank of the United States. Hamilton argued that the “Necessary and Proper Clause” of the Constitution authorized the federal government to execute already existing powers enumerated in the Constitution – taxation, in this case – and thus, allowed for the establishment of the bank (later upheld in McCulloch v. Maryland –1819).
But what Constitutional passage authorizes the federal government to compel its citizens to purchase health insurance?
What already enumerated power grants the federal government such authority?
Where in the Constitution can it even be suggested that Congress shall have the power (enumerated or implied) to force citizens to purchase anything?
A fair question, no?
And as far as Frum’s “ancient theory of enumerated powers” remark is concerned, I must ask … is it possible for one person to be as blatantly wrong as he is arrogant? Does the word “stupid” fit?
Did Frum put any thought into his piece at all?
While no one can deny that a “limited powers” argument – at least in terms of the Framers’ interpretation – is a difficult one to make in today’s day and age of endless entitlements and endless bureacracy, how can he contend with a straight face that enumerated powers are an “ancient theory?”
Are there no boundaries then on what Congress may do? Is there no whim or agenda beyond restraint?
If Congress can, essentially, do whatever it damn well pleases, as Frum’s argument seems to suggest – even under the authority of the “Necessary and Proper Clause” – what would be the point of acknowledging enumerated powers to begin with?
Why recognizee them at all? Why not just make it up as they go along?
Mr. Frum seems to believe that today’s conservative should just roll over and concede that ever-expanding government is a foregone conclusion. It’s just a matter of pushing back a little every now and then to keep things honest. Those antiquated “limited government” principles are quaint and all, but they have no relevance today.
He also writes:
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.
This may be the most embarrassing paragraph of all.
Let’s be clear … Medicare is a tax. American citizens who earn income via wages are required to pay this tax. The money collected from this tax is intended to be returned in the form of government benefits (i.e., Medicare). That’s how it is set up to function. Simple really.
ObamaCare, by contrast, makes it illegal not to purchase a free-market good from a private entity. It literally requires one to buy something or else be punished. The fines from such a punishment would then be collected as a tax. Jail time is a possibility, too.
How in the world is that constitutional?
Congress has never mandated that its citizens purchase anything at any time.
There is no precedent.
Recall that President Franklin Roosevelt tried to initially peddle Social Security as a compulsory insurance plan. It didn’t fly. Eventually, it was sold as a mandatory tax.
But even Alexander Hamilton did not believe that Congress’ charge to “provide for the … general welfare” gave it the power to do as it saw fit. He actually sounded much like Jefferson and Madison on the matter when authoring his Federalist essays. While he believed the First Bank of the United States was a constitutional venture because it was necessary in the federal government’s function to “collect taxes” as enumerated in Article I, Section VIII, he still took a very narrow view of providing for the “general welfare” – far different than today’s big-government, liberty-crushing Obamacrats see it.
In arguing against the Bill of Rights in Federalist 84, for example, Hamilton wrote:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.
They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
These sound like the opinions of a man who would, today, be called a “strict constructionist” – even though he was a Federalist (the opposition party of Jefferson’s Democratic-Republicans).
To Frum, the thoughts and interpretations of the “ancient ones” – those who who were actually there at the Constitution’s creation – have little relevance today.
Kind of like Frum in the arena of ideas.