Hat tip to Vanderleun.

From PackerBronco (one of Ann Althouse’s commenters):

These days, when the President says that we have to “eat our peas,” I no longer know whether he’s offering a metaphor or invoking the Commerce Clause.

“Eat our peas” occurs around 1:05

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

–Senator Barack Obama, Dec. 20, 2007. (Hat tip to Ann Althouse, Alex Tabarrock, and Radley Balko.

Larry Tribe was in great form in yesterday’s New York Times.

Nothing in his hands, nothing up his sleeve, now pay close attention as the law professor takes the interstate commerce clause and the American citizen sitting at home doing nothing at all and a federal mandate compelling Americans to purchase health insurance policies and magically causes the last two to fit within the former.

[P]redictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Mr. Tribe fails to consider that perhaps key New Deal era decisions, like Wickard v. Filburn, which reached beyond actual interstate activity to assert federal authority over private activity which might affect interstate commerce, were unfaithful to the intent of the framers, casuistical, and wrong to begin with.

Mr. Tribe also simply discounts as irrelevant the fact that in recent years, the modern court has become considerably more serious and more respectful of the Constitution. The United States v. Lopez decision in 1995 represented a major change of direction.

Liberal constitutional jurisprudence has an interested double-joined quality. The actual language, meaning, and intent of the Constitution are to be looked upon as inherently factually unknowable, as cryptic apothegms from a distant and fundamentally alien civilization, open to creative interpretation and subject to being overruled by the privileged moral insights of the contemporary elect at will. But the windy and vaporous decisions of the New Deal court, ah! they are sacred and immovable compass points of Constitutionality. As Robert H. Jackson writes, so it must be forever.

Larry Tribe is clearly whistling in the dark, repeating a happy liberal fantasy offered by Sam Stein over at HuffPo last week, that Antonin Scalia will apply the same statism that went into his concurrence with the decision in Gonzales v. Raiches upholding federal criminalization of home-grown marijuana. Personally, I think Messrs. Stein and Tribe are mistaken.

Even if the Necessary and Proper clause can be adduced to support a federal system of interstate regulation in the case of marijuana prohibition, a federal law prohibiting a particular activity like the use of marijuana differs distinctly from a federal law imposing an obligation to perform an affirmative act, from a law making Americans purchase something. Upholding a federal power to forbid does not necessarily imply a belief in a further federal power to compel.

Mr. Tribe, I suspect, apprehends himself that distinction, since he finds it desirable to use his literary powers to transform the passive state of American citizens living their lives prior to the imposition of Obamacare into an active assertion of an innovative right.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.

In reality, Americans have a social contract. It is a written one called the Constitution of the United States. That social contract forbids Obamacare.

This is the statement referenced by Judge Vinson in the footnote on page 76 of his opinion.

From Ed Morrissey.

Ouch! Not only are a majority of states in court challenging the constitutionality of Obamacare, federal judges keep ruling in their favor.

The Washington Times cherishes Senior United States District Judge Vinson’s use of Barack Obama’s own words in a footnote.

In ruling against President Obama‘s health care law, federal Judge Roger Vinson used Mr. Obama‘s own position from the 2008 campaign against him, when the then-Illinois senator argued there were other ways to achieve reform short of requiring every American to purchase insurance.

“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” Judge Vinson wrote in a footnote toward the end [page 76] of his 78-page ruling Monday.

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The Wall Street Journal gave Judge Vinson’s ruling a rave review, describing it as “introduc[ing] ObamaCare to Madison and Marshall.” Everyone is collecting great passages from Judge Vinson’s opinion.

‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

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Don Surber found another of the best apothegms in the decision.

“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

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William Tucker responds to Harvard American History Professor Jill Lepore’s prolix rant in the New Yorker, attempting to trivialize the Constitution and bury Originalism beneath an avalanche of anecdotes.

During the First Congress’s debates over the Bill of Rights, one wise Congressman noted that someone better include a right of men to “wear hats, go to bed and get up when they please,” because someone was sure to come along and say if it wasn’t a “right” specified in the Constitution, it wasn’t allowed. The Congress recognized this problem and attempted to avoid it with the Ninth and Tenth Amendments:

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.

Conservatives have rightly seized upon the Ninth and Tenth Amendment as the basic concepts underlying the Constitution. It is a document in which the people grant rights to the government, not one in which the government grants rights to the people. Liberals never stop misinterpreting this formula. Bill Moyers once asked a Supreme Court Justice, “When are you going to grant us more rights?” as if we were all beggars huddled outside some royal palace petitioning for an extra slice of bread or another holiday. But liberals like it that way because a “Living Constitution” allows them to write their own preferences into stone as “constitutional rights” rather than achieving them through legislation. Abortion is a constitutional right, the death penalty is unconstitutional, and on and on. In some states the right of public employees to collect their pensions has been written into the constitution. Now how did that ever happen?

When conservatives argue that the Constitution is silent on such issues, they are accused of “Originalism” and forcing us to live in the past. How could a bunch of 18th century white men have possibly anticipated all the problems of the 21st century? But the Founding Fathers weren’t trying to solve our problems for us. They were simply giving us a set of ground rules that would allow us to solve problems ourselves. So far the system has worked magnificently. Let’s hope it stays that way.

Some commentators thought the Supreme Court’s failure to grant cert in Alderman v. US, a 9th Circuit case involving possession of body armor by a felon, testing the reach of the Commerce Clause, may have evidenced an inclination on the part of the Court to decline to consider the same kind of issue as it applies to a federal mandate to purchase health insurance as part of Obamacare.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich (R) and Scott Walker (R) (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

A well developed sense of humor is a characteristic feature of Virginians, but not of government officials, even in Virginia. The Virginia DMV has banned my favorite vanity license plate. I’ve actually seen this plate driving by on local roads.

Matt Hardigree has the unhappy details.

H/t to Karen L. Myers.

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Mochi (a chewy rice cake served during Japanese New Year celebrations) kills more people than Fugu (sushi made from a blowfish containing tetrodotoxin). The Telegraph explains why.

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An apple tree consumed the remains of Rhode Island founder Roger Williams. Greg Ross has details.

Via Ka Ching.

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Daniel Mitchell predicts how Barney Frank and Henry Waxman will react when the Constitution is read aloud.

Liberals love playing Gotcha! They are always pouncing and then piling onto anyone of prominence who lets slip a statement capable of being interpreted as an expression of politically incorrect opinions.

Haley Barbour was recently targeted, and nearly obliterated by the incoming liberal barrage, after he was so indiscreet as to speak positively of white citizens’ councils in segregation-era Mississippi (for resisting the Ku Klux Klan) and for remembering life in his hometown, when he was young, as “not so bad.”

Amusingly, yesterday, liberal WaPo pundit Ezra Klein came similarly a-cropper and, I’d say, rather more deservingly.

Via Steve Gutowski:

This commentator, who is considered so intellectual that his fellow journalists refer to him as a “wonk,” informs MSNBC that he believes “it (The US Constitution) has no binding power on anything.” Its “text is confusing because it was written more than a hundred years ago.” Besides which, “What people believe it says differs from person to person, and differs depending on what they want to get done.”

Ouch!

If we are to believe Ezra Klein, the Constitution is first of all impotent and irrelevant, and secondly indeterminate and meaningless.

I think Mr. Klein demonstrates perfectly the end product of contemporary elite education, as practiced at his own UC Santa Cruz and UCLA just as it is practiced at Yale and Harvard. There are no facts, merely differing opinions. Even the US Constitution, a readily available document written in the same language spoken today, capable of being read without resort to a dictionary, the well-known product of an abundantly-documented tradition of political philosophy, and with respect to which same the design and drafting and compromises and debate are all well recorded, has for Mr. Klein no fixed or determinative meaning whatever.

Ezra Klein obviously was saying exactly what he really thinks. The inadvertence of his statement consisted of the fact that a majority of Americans really do think the Constitution is both binding and scrutable entirely slipped his mind. That was perfectly understandable. It was clearly one of those moments of liberal fugue, resembling Pauline Kael’s expression of astonishment that Richard Nixon has actually won the 1972 election when she knew personally no one who had voted for him. Like Ms. Kael, Ezra Klein probably knows no one who considers the US Constitution actually binding or immune to interpretation into anything the liberal heart desires.

In Ezra Klein’s community, there are no fixed meanings to texts, meaning is conferred by the reader. There is also no Constitutional right answer, politics is a contest decided by numbers achieved by the glibbest arguments and the most noise.

To absurd reactionaries like myself, the US Constitution and the principles of the Liberal political philosophy of the framers are a fixed political compass. To Mr. Klein and his ilk, there is really also a determinative political compass and fixed truth. But in his case, the established text is not to be found in a 100+ year old document like the Constitution. It can be read daily in the opinion columns and between the lines of news stories in the establishment media. It is the consensus of the bien pensant elite that is the unmoving Pole Star of liberal politics. You will no more ever find Ezra Klein opposing that consensus than you would have ever found Barry Goldwater or Ronald Reagan proposing that the US Constitution simply be ignored.

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Stung by widespread mockery, Klein replied, contending that he meant that the reading of the Constitution was not binding, but reiterating his view that no particular interpretation need necessarily pertain.

It’s also, I noted, a completely nonbinding act: It doesn’t impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn’t. That’s bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it.

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Young Ezra was, in return, well and truly mocked by Iowahawk.

When journalists diffidently inquired a few months back about the Constitutional basis for mandated health insurance purchases, the response of democrat party Solons typically varied between blank incomprehension and clear indignation at the effrontery of anyone suggesting that any kind of limits on their power might exist.

Walter Olson remarks on a recent demonstration for the need of remedial high school civics lesson for US senators.

Last Tuesday, despite warnings of regulatory overreach, the Senate voted 73-25 in favor of S. 510, the Food Safety Modernization Act, which would greatly expand the powers of the federal Food and Drug Administration and impose extensive new testing and paperwork requirements on farmers and food producers. Almost at once, however, the bill was derailed — whether temporarily or otherwise remains to be seen — by what the New York Times called an “arcane parliamentary mistake” and the L.A. Times considered a purely “technical flaw“. Roll Call put it more bluntly: “[Senate] Democrats violated a constitutional provision requiring that tax provisions originate in the House.” While the New York Times weirdly cast Senate Republicans as the villains in the affair, other news sources more accurately reported that it was the (Democratic) House leadership that was standing up for its prerogatives:

“Unfortunately, [the Senate] passed a bill which is not consistent with the Constitution of the United States, so we are going to have to figure out how to do that consistent with the constitutional requirement that revenue bills start in the House,” [House Majority Leader Steny] Hoyer said.

According to Hoyer, this has happened multiple times this Congress, causing severe legislative angina.

“The Senate knows the rule and should follow the rule and they should be cognizant of the rule,” Hoyer scolded. “Nobody ought to be surprised by the rule. It is in the Constitution, and you have all been lectured and we have as well about reading the Constitution.”

To those familiar with the history of the U.S. Constitution, the Origination Clause should hardly count as arcane or technical. It stands as the very first sentence of Article I, Section 7: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” …

With its two-year terms of office and less populous constituencies, the House of Representatives was of course designed to be the legislative branch closest to the people, most readily thrown out of office when it strays from the public mood. Those considerations aside, the Constitution is rightly celebrated for the way its framers made the House and Senate different from each other precisely in order to ensure jealousies and dissensions between the two, those jealousies and dissensions serving as a safeguard against hasty or ill-considered legislation. In this case it worked exactly as planned, and the self-regard of the House leadership will serve as the reason for another round of scrutiny for a bill that could badly use some. Somewhere up above the spirit of James Madison may have heard the scolding words of Rep. Hoyer, and smiled.

Things, of course, are not really different among House democrats either. Remember Alcee Hastings’ analysis of the legal dynamic behind the operations of American government?