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April 21, 2014

Andrew Silow-Carroll: Passoverkill? Suggestions to make next year's seders even more culturally sensitive

Sara Israelsen Hartley: Seeking the Divine: An ancient connection in a new context

Christine M. Flowers: Priest's execution in Syria should be call to action

Courtnie Erickson: How to help kids accept the poor decisions of others

Lizette Borreli: A Glass Of Milk A Day Keeps Knee Arthritis At Bay

Lizette Borreli: 5 Health Conditions Your Breath Knows Before You Do

The Kosher Gourmet by Betty Rosbottom Coconut Walnut Bars' golden brown morsels are a beautifully balanced delectable delight

April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review January 14, 2010 /28 Teves 5770

That rock in the health-care road? It's called the Constitution.

By George Will



http://www.JewishWorldReview.com | Although Democrats think their health-care legislation faces smooth sailing to implementation, there is a rock dead ahead — a constitutional challenge to the legislation's core. Democrats who assume it is constitutional to make it mandatory for Americans to purchase health insurance should answer some questions:

Would it be constitutional for the government to legislate compulsory calisthenics for all Americans? If not, why not? If it would be, in what sense does the nation still have constitutional, meaning limited, government?

Supporters of the mandate say Congress can impose the legislation under the enumerated power to regulate interstate commerce. Since the New Deal, courts have made this power capacious enough to include regulating intrastate activity that "substantially affects" interstate commerce. Hence Congress could constitutionally ban racial discrimination in "public accommodations" — restaurants, motels, etc. — as an impediment to interstate commercial activity.

Opponents of the mandate say: Unless the commerce clause is infinitely elastic — in which case, Congress can do anything — it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.

"Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities." So says Sen. Orrin Hatch, who also notes that if Congress can mandate particular purchases to help the economy, there was no need for Cash for Clunkers: Congress could have ordered people to buy cars (with subsidies, if necessary). Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise Tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?


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Many liberals, says Hatch, spent eight years insisting that "the Constitution sets definite and objective limits that the president must obey." There are, however, no constitutional controls on Congress if there are no limits on its power to declare all its preferences "necessary and proper" for the regulation of commerce.

Stuart Taylor, a judicious analyst of legal matters, says (in the National Journal) that the Supreme Court probably would uphold the constitutionality of the mandate, for two reasons: Because uninsured people create substantial economic effects by seeking free care from emergency rooms. And because the mandate is, in Congress's judgment, "necessary and proper" for financing health-care reform.

But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated — or required. Furthermore, judicial review — and the Constitution itself — is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.

If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that.

Taylor also says that the alternative to upholding the mandate is for the court to strike down a president's "signature initiative — something that no court has done in more than 70 years, for good reason." The reason is a general duty to respect government decisions arrived at democratically. Which brings us to what conservatives must believe in order to believe that the Supreme Court should declare the insurance mandate unconstitutional.

Judicial review — let us be candid: judicial supervision of democracy — troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy. Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, "judicial activism."

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual — basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.

The latter kind of conservatives are more truly conservative than the former kind because they have stronger principles for resisting the conscription of individuals, at a cost of diminished liberty, into government's collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.


Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

George Will's latest book is "With a Happy Eye but: America and the World, 1997-2002" to purchase a copy, click here. Comment on this column by clicking here.

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