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Is the Constitution a Threat to Liberty?

Liberty lovers look to America’s Founding Fathers as patron saints, rightly revering the documents those men drafted as bulwarks of individual freedom. How ironic, then, that those very Founders may have  inadvertently planted the seeds of liberty’s demise in the U.S. Constitution itself.

Article 1, Sec. 8, the infamous “Commerce Clause” grants the federal government the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” And ever since it was written, this seemingly open-ended phrase has been used to justify the federal government’s ever-expanding scope and power.

In 1942, for example, the Supreme Court used the Commerce Clause in its Wickard v. Filburn ruling that Congress had the power to limit how much wheat a farmer could grow, even for his own personal use, because home-grown wheat “supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”

Now the Commerce Clause is being used to justify the constitutionality of Obamacare’s individual mandate that every American purchase health insurance or be subject to government sanction. And not just by liberals: Justice Laurence Silberman, a seemingly conservative jurist appointed by Ronald Reagan, joined a recent 2-1 decision by the U.S. Court of Appeals for the District of Columbia Circuit in finding the individual mandate totally copacetic with the U.S. Constitution. In fact, as The Washington Post’s Wonkblog put it, Silberman himself wrote the “full-throated defense of the health reform law.” And the Commerce Clause, predictably, provided the cover.

Conservatives are in a dreadful bind. They want a strict reading of the Constitution to prevent the government from intruding on personal liberties, but what if a strict reading of that document does grant the government the power to encroach on those liberties? At least one conservative judge thinks that it does.

Until now, many had hoped that the courts and the Constitution would save us from Obamacare. Anyone have a Plan B?