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Entries in Constitution (142)


NRO editorial: Roberts has "done violence" to Constitution

A new NRO editorial, “Chief Justice Roberts’s Folly,” discusses the Supreme Courts’ decision to uphold Obamacare, stating,

What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. . . The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.

Chief Justice Roberts’s Folly

By The Editors

In today’s deeply disappointing decision on Obamacare, a majority of the Supreme Court actually got the Constitution mostly right. The Commerce Clause — the part of the Constitution that grants Congress the authority to regulate commerce among the states — does not authorize the federal government to force Americans to buy health insurance. The Court, in a 5–4 decision, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.

What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a “requirement” to buy insurance, it says that individuals “shall” buy it, and it levies a “penalty” on those who refuse. As the conservative dissent points out, these are the hallmarks of a “regulatory penalty, not a tax.”

The law as written also cuts off all federal Medicaid funds for states that decline to expand the program in the ways the lawmakers sought. A majority of the Court, including two of the liberals, found this cut-off unconstitutionally coercive on the states. The Court’s solution was not to invalidate the law or the Medicaid expansion, but to rule that only the extra federal funds devoted to the expansion could be cut off. As the dissenters rightly point out, this solution rewrites the law — and arbitrarily, since Congress could have avoided the constitutional problem in many other ways.

The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.

The Court has failed to do its duty. Conservatives should not follow its example — which is what they would do if they now gave up the fight against Obamacare. The law, as rewritten by judges, remains incompatible with the country’s tradition of limited government, the future strength of our health-care system, and the nation’s solvency. We are not among those who are convinced that we will be stuck with it forever if the next election goes wrong: The law is also so poorly structured that we think it may well unravel even if put fully into effect. But we would prefer not to take the risk.

It now falls to the Republicans, and especially to Mitt Romney, to make the case for the repeal of the law and for its replacement by something better than either it or the health-care policies that preceded it. Instead of trusting experts to use the federal government’s purchasing power to drive efficiency throughout the health sector — the vain hope of Obamacare’s Medicare-cutting board — they should replace Medicare with a new system in which individuals have incentives to get value for their dollar. Instead of having Washington establish a cartel for the insurance industry, they should give individuals tax credits and the ability to purchase insurance across state lines. Instead of further centralizing the health-care system, in short, they should give individuals more control over their insurance.

Opponents should take heart: The law remains unpopular. Let the president and his partisans ring their bells today, and let us work to make sure that they are wringing their hands come November.

The complete text of the editorial follows. It can also be found on National Review Online at


Heritage - Happy 225th Anniversary of the Constitutional Convention!

Today marks the 225th anniversary of the beginning of the U.S. Constitutional Convention on May 25, 1787. The U.S. Constitution, which has enabled our country's growth and success for hundreds of years was written in a mere four months. Read the Foundry's fascinating blog post on how those summer months transpired and how the most incredible governing document in history was created.


Obama Spends Way Too Much
The President is on track to increase federal spending to 24% of GDP during his term. Major spending cuts are required to prevent a Greece-style financial disaster. This week Heritage responded to media reports that spending levels are not unprecedented with a Mike Brownfield blog post.  Also, please view the 2012 Federal Budget in Pictures for further evidence of the spending binge. Below is a sample graphic from the new book:


Protect America Month: Defending Defense Project
May is Protect America Month in large part because the defense budget is being debated here in DC. A joint effort on the part of American Enterprise Institute, The Heritage Foundation, and Foreign Policy Initiative called Defending Defense has produced a new website. This online resource serves as a powerful tool to educate citizens on the need for strategy-based defense spending and why massive arbitrary cuts to defense spending must be avoided.

Law of the Sea Treaty (LOST) is Unnecessary and Dangerous
The U.S. Senate is considering a treaty that would surrender sovereignty and subject U.S. citizens to a tax that would be collected by an international governing authority. While Senator John Kerry announced this week that the vote will be postponed until after the November election, it's still a cause for concern. Ratifying the treaty would be a dangerous and unneccessary step in the wrong direction. Learn the dangers of LOST from Heritage fellow Steven Groves by reading this fact sheet. For a more detailed explanation of the threats the treaty poses read his new Backgrounder on the topic.


ALG - Indefinite detention of U.S. citizens temporarily halted

May 22, 2012, Fairfax, VA—Americans for Limited Government President Bill Wilson today issued the following statement praising the U.S. Southern District of New York Court for enjoining enforcement of the National Defense Authorization Act (NDAA) that allowed for the indefinite detention of U.S. citizens for national security purposes:

"Judge Katherine Forrest has taken the first, necessary step of suspending enforcement of the section 1021 of the NDAA pending further review by federal courts, preventing the federal government from indefinitely detaining any U.S. citizen while the trial is taking place. The government's arguments in this case rest on a very broad interpretation of the President's war powers on the homeland. It is essentially claiming to already have the power to exercise war powers against citizens on the homeland.

"The Bill of Rights was designed to work under all circumstances, including wartime, and as such the authorization to use force in Afghanistan cannot supersede constitutional protections to due process. Nor can the government target citizens for activities otherwise protected by the First Amendment as violations of law or threats to national security.

"Judge Forrest must now go the extra step and find the NDAA's overbroad detention policies to be an unconstitutional overstep by Congress. If the government has enough cause to hold a citizen indefinitely, it can make its case at a trial with a jury of one's peers rendering a verdict. The reasons for indefinite detention would otherwise be prohibited by federal statute anyway, and subject to criminal penalties. Therefore the government has yet to articulate a reason why such authority is necessary, let alone constitutional."

To view online:



Americans for Limited Government is a non-partisan, nationwide network committed to advancing free market reforms, private property rights and core American liberties. For more information on ALG please call us at 703-383-0880 or visit our website at


Shea-Porter For Congress - Frank Guinta votes against victims of violence

New Hampshire- Today, former Congresswoman Carol Shea-Porter, who is running for Congress in the First Congressional District, released the following statement.

“Today, Congressman Frank Guinta voted for a weakened, partisan version of The Violence Against Women Act that leaves out vital protections for victims of abuse. He rejected pleas from hundreds of religious, civic, humanitarian, and law enforcement organizations and sharply limited protections for gay, immigrant, and Native American victims of violence. Frank Guinta even refused to vote for a motion that would have prevented a suspected batterer from being notified of a victim's efforts to seek assistance from law enforcement. Mr. Guinta was the only member of the New Hampshire Delegation who found stronger protections for victims of violence unacceptable.” 


Carol Shea-Porter for Congress
P.O. Box 453
Rochester, NH 03866


Heritage - Saving America From Failure

We've witnessed the struggles of the American economy and the government attempts to intervene and "fix" things. Heritage research and recent history confirms what conservatives always have known, which is that government programs are not the solution, they are the problem. This fall America will send a new batch of leaders to Washington who will hopefully arrive with a plan to get government out of the way and allow American ingenuity and entrepreneurship to provide a real and sustained recovery.


What Would It Take For America to Fail?
An organization called has created a series of videos explaining how important free markets are to sustaining and growing American prosperity. One video cites Heritage's Index of Economic Freedom when describing our nation's multi-year economic slide. The most popular video, entitled "If I wanted America to fail," articulates what an administration might hypothetically do to inflict the greatest economic harm on the country.


Are Companies Too Big or Too Small To Fail?
The current debate on Capitol Hill is over whether small post offices should be closed in order to cut costs for the beleaguered USPS. Will the agency cut costs and innovate or become an even larger encumbrance on the taxpayer by sustaining tiny post offices for the sake of nostalgia? James Gattuso tackles the issue in a recent Issue Brief on regulation.


Now Online: A Clause-By-Clause Guide to the Constitution
Heritage just launched an online version of The Heritage Guide to the Constitution that provides a brief and accurate explanation of each clause of the Constitution. Three key benefits of the online format are: the content is completely searchable, the website provides links to Heritage research papers and analysis, and free access to the entire book makes it an attractive teaching companion. This tool will help American citizens and lawmakers develop a deeper understanding of what the Constitution really means, so please spread the word about through your social networks.

New Insider Magazine: Obamacare vs. Liberty
The spring edition of Heritage's quarterly magazine The Insider has just been released with a brand new look! This issue features an article entitled "Obamacare vs. Liberty." Visit InsiderOnline to download your PDF copy today.

National Standards Say: "I'm From the Government & I'm Here to Help"
The federal government is using a combination of carrots and sticks to encourage states to sign on to the Common Core State Standards Initiative. Relying on government bureaucrats in Washington, DC to know what's best for your child is never a good idea.  Learn why Heritage education expert Lindsey Burke rejects the idea of federal standards and what we should do about it in her Backgrounder on the subject.

The Values Bus Tour
The next leg of the bus tour swings through Colorado. In June the bus will visit Wisconsin. For detailed tour dates and information please visit