Big Government Continues Eroding the Constitution

Lawmakers and the courts keep chipping away at our liberty.


“The natural progress of things is for liberty to yield, and government to gain ground,” wrote Thomas Jefferson. Two hundred and twenty-seven years to the month after he proposed that theory, we have yet another case study to prove it.

Congress has until the end of the month to extend or modify the Patriot Act, passed in the panicky aftermath of 9/11. One of the sticking points has been the dragnet surveillance of Americans’ telephone activity by the National Security Administration that Edward Snowden exposed to the world two years ago. Last Thursday, a three-judge federal appeals panel unanimously found that the data collection program violates the Patriot Actâ€"specifically, Section 215.

Section 215 has been hugely controversial, since it allows the authorities to demand “tangible things” such as books, papers, records and “other items” in the pursuit of an investigation, without explaining why, and to insist that the party handing over the records keep silent about the request. As has been pointed out often since, this means the library has to hand over your borrowing records without telling you.

This was the nail the NSA hung its hat on when it created the bulk metadata-collection program. But as the Second Circuit’s Gerard Lynch wrote in his ruling, while there are supposed to be “reasonable grounds” to think the information requested is “relevant” to a national-security investigation, the NSA simply took the position that it could collect everyone’s records so long as it focused on only some of them. Rather like Schrodinger’s cat, everything is relevant and not-relevant until the NSA acts on it.

The Patriot Act vastly expanded government power. And yet, for the NSA, it did not go far enough. It is helpful to have the Second Circuit slap the agency down, but the courts are not always so constraining. The Supreme Court certainly was not when, in a series of cases culminating with Kelo v. New London in 2005, it gradually unmoored the language of the Fifth Amendment from the purpose for which it was written.

Under the Fifth Amendment, government can take private property only for “public use.” In cases concerning blight and the breaking up of land oligopolies, “public use” became “public purpose.” Then, in Kelo, public purpose became public benefit, even in cases where the property taken went to another private party, rather than the public: So long as the government could assert that the seizure would, someday and however indirectly, redound to the common good, the taking qualified as one for public use.

The High Court did much the same in Wickard v. Filburn. Congress has the power to regulate interstate commerce, and it did so during the Depression when it set limits on the amount of wheat farmers could grow in order to boost prices.

Roscoe Filburn grew more than allowed, but he argued that because the excess was for his own consumption and not for sale, it never entered the stream of commerce, and was therefore exempt from congressional oversight. The Supremes said otherwise: Growing his own wheat allowed Filburn to avoid buying some on the market, and that had at least an indirect effect on interstate commerce by altering the total demand for wheat, so Congress could regulate Filburn’s private use as well.

That line of reasoning came in quite handy for defenders of Obamacare. Opponents of the law’s individual mandate said forcing people to buy something (in this case, an insurance policy) represented a gross expansion of government power, and Congress had no authority to do so.

Supporters said Congress did, because the failure to buy something still affects commerce. In short, “Wickard v. Filburn, therefore your argument is invalid.” The Supreme Court didn’t buy that, but it allowed the individual mandate to remain anyway, on the theory that the penalty for not buying insurance was, in actuality, a tax. (And never mind President Obama’s emphatic insistence otherwise.)

Soon the Supreme Court will rule on another aspect of Obamacare: whether people who buy insurance through a federal exchange are entitled to subsidies. The Affordable Care Act says such subsidies are available only to those who buy insurance through “an Exchange established by the State.” Obamacare opponents say the federal government is not a state, so subsidies aren’t available on federal exchanges.

Many defenders of Obamacare insist this is simply a drafting error that would have been cleaned up in conference committee, if the bill had gone to one (it didn’t). That’s not what the federal government argues, though. In court, the government contends that the words “established by the State” can mean either an exchange established by the state or an exchange established by the federal government in place of the state.

Thanks to the ACA’s ghastly incoherence, you can make a plausible argument for either side. But the argument for the broader interpretation relies on stretching the meaning of words in a manner that would make the NSA whistle with admiration.

Finally, another dispute in the legal community at present concerns occupational speech: Whether veterinarians, psychiatrists, tour guides, and so forth must get a permission slip from the government before practicing their trades, whether doctors can be forbidden to ask their patients about guns in the home, and so on. The libertarian Institute for Justice says such requirements impinge on the First Amendment.

Lining up on the other side are a phalanx of government regulators and Yale law professor Robert Post. In a recent exchange in the Harvard Law Review forum, Post fretted that, should the libertarian view of such matters prevail, “the First Amendment (would be) transformed into a straitjacket for our institutions of democratic governance.”

When an amendment begins “Congress shall make no law. . . “ one might reasonably conclude that constraining democratic institutions is precisely the point. But to advocates of big government, the plain and obvious meaning of the text is a nuisance.

The common thread running through all of these issues is the conjunction between the expansion of power and the distortion of ordinary meaning. Orwell warned about that very thing nearly seven decades ago in “Politics and the English Language,” when he wrote that “political speech and writing are largely the defense of the indefensible.” In that he was, like Jefferson, prescient.