When people talk about the Constitution and returning to the principles of our Founders, what do they mean? And how can we try to do that?
We have strayed from our Founders’ principles in several areas, but I think the primary problem is our oversized government. Our Founders believed in a limited government of enumerated powers. Supreme Court rulings expanding the Commerce Clause have paved the way for an explosion of the state, putting us on a path towards European-style socialism, where citizens depend on the government to bandage every wound and keep every ill at bay. There is no way to reconcile this philosophy with the attitude that made America great: individualism and freedom.
What can we do about it?
On the electoral front, I don’t know. I’m not a politico; I don’t know what makes for good electoral politics, and when I try to opine on that subject people should slap me. As a blogger it’s tempting to try to diagnose what would advance your point of view, but I think it’s best merely to stick to explaining what issues are important to me and why. For me, it’s the burgeoning government debt bubble, and it’s judges.
I feel comfortable opining on what we need on the judicial front — and that front is very, very important. The key is to nominate justices and lower court judges in the mold of Clarence Thomas. We need judges who are willing to adhere to the Constitution when precedents handed down by liberal judges are in conflict with the Constitution. Justice Thomas would bring the understanding of the Commerce Clause closer in line with what the Founders intended. (For all his weakness on the ObamaCare case, so would Justice Roberts, by the way.)
We need judges like Thomas on other issues as well. For example, in the Kelo case, we needed justices who were willing to require a taking to be a public “use” as the Constitution requires, and not a public “benefit.” We had four such justices, but we needed five. In the ObamaCare case, we needed judges who were willing to strike down the legislation as incompatible with the Constitution’s limits on the federal government. We had four such justices, but we needed five.
We don’t lose every battle like this. The left tried to gut the Second Amendment and they failed. They had four justices willing to do it, but they needed five.
Justice Alito is relatively young. Justice Roberts (whom we all revile for the ObamaCare decision but who is still basically a good justice for us) is young. Justice Thomas is still relatively young.
Justice Scalia and Justice Kennedy are each 76. Hopefully they can hang on for four more years and we’ll have a different President. This one may get to replace Justice Ginsburg, which is a shame. But it won’t tip the balance.
Right now we have a weak coalition at the Court. Sometimes we find five votes, but too often we have only four.
Once we have no chance of getting five votes, you can hang it up. We’re done.
We’re not at that point yet. But we’re very close.