The Distinction between Law and Politics

Article excerpt


In July 1776, when John Hancock and the other 55 signatories to the Declaration of Independence mutually pledged their Lives, Fortunes and sacred Honor, the pledge was not to be taken lightly. By their act, their lives and fortunes were, indeed, put at risk.

Later that year, with the battlefield situation confronting George Washington's army dire, Thomas Paine stirred his fellow revolutionaries with these words from his broadside, The Crisis :

These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.

The triumph was glorious. The Declaration of Independence was a gift, not only to us, but to freedom-loving people around the globe. There is nothing confronting us today comparable to the crisis of 1776. Nevertheless, we do face serious challenges that are worthy of invoking the spirit of '76.

I remember an encounter with an airline passenger. I found myself seated next to a middle-aged woman traveling from Florida to Washington to attend a tea party demonstration. Despite the expense, this was the second time within a few months she had flown to Washington to participate in a tea party rally. She was motivated mainly by what she saw as the Obamacare proposal's overreaching.

I don't want to debate the merits of Obamacare, or of any other particular policy issue. What struck me most about our conversation was that my seatmate spoke as passionately about what she saw as Obamacare's constitutional infirmities as its policy ills. She talked about the commerce clause's limits, the 10th Amendment's reservation of power to the states and to the people, and the Fifth Amendment's takings clause. All the while, in her hand she held a pocket-sized copy of the Constitution.

My seatmate was not a lawyer. Her constitutional understanding may not square with that of the majority of this country's law professors or comport with the existing body of constitutional jurisprudence. So, in that sense she might well be wrong. …