From Daniel Henninger:
Constitutional professors quoted in the press and across the Web explain that much about the federal government’s modern authority is “settled” law. Even so, many of these legal commentators are quite close to arguing that the national government’s economic and political powers are now limitless and unfettered. I wonder if Justice Kennedy believes that.
Or as David Kopel asked on the Volokh Conspiracy blog: “Is the tax power infinite?”
In a country that holds elections, that question is both legal and political. The political issue rumbling toward both the Supreme Court and the electorate is whether Washington’s size and power has finally grown beyond the comfort zone of the American people. That is what lies beneath the chatter about federalism and the 10th Amendment.
Liberals will argue that government today is doing good. But government now is also unprecedentedly large and unprecedentedly expensive. Even if every challenge to ObamaCare loses in court, these anxieties will last and keep coming back to the same question: Does the Democratic left think the national government’s powers are infinite?
No one in the Obama White House, asked that in public on Sunday morning, would simply say yes, no matter that the evidence of this government’s actions the past year indicate they do. In his “Today Show” interview this week, Mr. Obama with his characteristic empathy acknowledged there are “folks who have legitimate concerns . . . that the federal government may be taking on too much.”
My reading of the American public is that they have moved past “concerns.” Somewhere inside the programmatic details of ObamaCare and the methods that the president, Speaker Pelosi and Sen. Reid used to pass it, something went terribly wrong. Just as something has gone terribly wrong inside the governments of states like California, New York, New Jersey, Michigan and Massachusetts.
The 10th Amendment tumult does not mean anyone is going to secede. It doesn’t mean “nullification” is coming back. We are not going to refight the Civil War or the Voting Rights Act. Richard Russell isn’t rising from his Georgia grave.
It means that the current edition of the Democratic Party has disconnected itself from the average American’s sense of political modesty. The party’s members and theorists now defend expanding government authority with the same arrogance that brought Progressive Era reforms down upon untethered industrial interests.
In such times, this country has an honored tradition of changing direction. That time may be arriving.
Faced with corporate writedowns in response to the reality of Congress’s new health plan, an apoplectic Congressman Henry Waxman commanded his economic vassals to appear before him in Washington.
Faced with a challenge to his vision last week, President Obama laughingly replied to these people: “Go for it.”