Obamacare, Justice Brandeis and Unlimited Government Power

Rick Richman of Commentary has an excellent (if belated) post at PajamasMedia on the July 3 panel discussion on This Week. In a debate on what the U.S. Constitution protects, and what it can legitimately allow Congress to mandate via the Commerce Clause and Obamacare, George Will asked this:

WILL: … Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?

As Richman notes, none of the liberal panelists had an answer — or even attempted to address the core question of the constitutional limits of federal power. Quips Richman:

The whirring sound you could hear in the background was the Founders spinning.

So, too, must have been former U.S. Supreme Court Justice Louis Brandeis, among the first modern "progressives" on the Court.

Appointed by Woodrow Wilson in the early and heady days of the 20th Century progressive movement, Brandeis is a giant of the left to this day for his "people's lawyer," trust-busting, anti-corporation legacy.  Yet even he would blanche at what Obamacare could bring about if not struck down. Brandeis wrote in a Supreme Court decision in 1928:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

You can find no such humility, let alone "understanding" in today's brand of progressive, as George Will's unanswered question revealed. One of those progressives who lack Brandeis' understanding is our newest Supreme Court Justice, Elena Kagan — who couldn't even give a straight, logical and simple answer when asked if the federal government could use the Commerce Clause to mandate that Americans eat a more-healthy diet.

COBURN: Well, I guess the question I am asking is: Do we have the power to tell people what they have to eat every day?
KAGAN: [long pause], Senator Coburn, [pause], um, [pause], I, I –

The correct answer is: Of course not — at least to progressives of a generation ago. Today's breed of progressive believes that what they can't encourage by persuasion must be compelled by law. And that's what has conservatives and libertarians so worried — and why the modern Tea Party came forth.