Americans Get a Peek into Constitutional Chasm; Santorum: Still Ferocious

Americans Get a Peek into Constitutional Chasm; Santorum: Still Ferocious

Supremes Dive Into Constitutional Chasm on Obama Health Law

“…it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can't have it. And that's a really profound thing for an unelected court to say.”

-- Former Solicitor General and supporter of President Obama’s health care law, Neal Kaytal in an interview with Agence France-Presse discussing the stakes of high-court hearings on the law set to begin today.

What is the point of the Constitution?

Conservatives say that it is primarily the great limitation of government power – a series of negative liberties imposed on the federal government by the Founding Fathers to protect the natural rights of future citizens.

To the right, it is the unshakable trunk of the tree of liberty that can only be changed by amendment.

Liberals say that the Constitution is a framing document that was a first stab at government by people who were more enlightened than their predecessors, but still bound by ancient thinking on issues like slavery and the rights of women.

To the left, it is a “living document” that can be interpreted differently by different people at different times based on new discoveries and understandings. It is not a codex for all American governments of all times, but the first step in a long march.

This battle is far from new in American public life, but it has rarely been so consequential as it is now as Republicans deepen their devotion to the 224-year-old document and Democrats redouble their efforts to bring the nation in line with modern, Western standards for the role of government.

Democrats won the last big round on the subject three generations ago when jurists and public opinion decided on behalf of empowering the government to take money from some to give to others. Welfare programs of the modern kind are nowhere in the Constitution, but from the controversial creation of an income tax to the establishment of the New Deal and Great Society, the left won a long war on the point that Congress and the executive branch had the power to fill in what the Founders left out.

The next phase of that fight is now underway, but it comes after three decades in which the judiciary and electorate have moved to the right. Driven in part by backlash against the legal pioneers who found room in the penumbras of the Constitution to allow elective abortions on demand, the nation moved away from broad interpretations of the law.

President Obama and Democrats in Congress now hold that in order to provide for the welfare of the citizens, it is necessary to force everyone to either purchase private health insurance or be enrolled in a government health care program. If everyone doesn’t pay into the system, the new welfare programs would be almost immediately unsustainable.

To the left, this is just more filling in the blank spots left by the Founders, who didn’t foresee health insurance and the need for its compulsory purchase for the good of the whole. If the federal government doesn’t have the power to regulate health care, then, liberals argue, who will protect the people?

To the right, the discovery of the power of the federal government to make an individual engage in commerce would be a dangerous step toward tyranny. While they dislike the specific law, they fear the precedent that would give the government broad new vistas in terms of forcing unwilling citizens to engage in new behaviors.

The justices begin today with hearings on the law, starting with the first question of whether the legislation, designed for implementation after the current election cycle, is yet ready for hearing. If no one has yet been punished for not buying health insurance, who has been harmed?

But Americans later this week will receive a crash course in constitutional law as lawyers argue whether there are enough shadows in the Commerce Clause of the Constitution to allow this new government power or not.

These words: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;” have been the basis for a tremendous lot of government expansion in the past 100 years, but never one like this.

Santorum’s Big Swings Produce Big Misses

“Pick any other Republican in the country, He is the worst Republican in the country to put up against Barack Obama. Why would Wisconsin want to vote for someone like that?”

-- Former Pennsylvania Sen. Rick Santorum campaigning in Racine, Wisc.

Rick Santorum has now embraced Ronald Reagan’s unsuccessful 1976 presidential campaign as the model for his own underdog bid against Mitt Romney.

Reagan denied the incumbent president an outright majority of delegates during state-level selections and headed to the Republican National Convention in Kansas City with the chance to pull off an upset if he could add several dozen more delegates to his own number.

Reagan got a late start, but after six contests, the former two-term California governor started notching wins in what became a pitched battle with Gerald Ford that raged until the second week of June. Reagan won 23 contests to Ford’s 27 and had hopes of snatching the support of unbound delegates supporting the then-president to pull off an upset.

In those days, party fathers had even more to say about the disposition of delegates and, despite Reagan’s overtures to moderate delegates, Ford won a decisive victory on the first ballot. But the defeat was a turning point for the GOP. Conservatives, who had been in the wilderness since Barry Goldwater’s obliteration in 1964, had a new charismatic champion. Reagan surrendered and endorsed Ford, but at once began preparations for his next presidential campaign.

The message this year from Santorum is that conservatives again need to rise up and break the control of moderates over their party and demonstrate their defiance. While at the halfway point in the primary process, Santorum has less success than Reagan in 1976, the former Pennsylvania senator could, with the help of Newt Gingrich and Ron Paul, still conceivably block frontrunner Mitt Romney from winning outright and force a convention-floor battle.

But many Republicans fear a general-election outcome similar to that of 1976, when Democrat Jimmy Carter narrowly edged a weakened Republican (Ohio fell to Carter by fewer than 11,000 votes). But die-hard Santorum supporters argue in private that risking such a scenario would be preferable to nominating a moderate who would damage the GOP’s brand and undo the populist gains for the party in the 2010 elections.

To explain in public why Republicans should keep the process alive, Santorum has increasingly argued that Romney is doomed to defeat no matter what because of Romney’s 2007 Massachusetts health law. Santorum’s argument is that Romney will be unable to prosecute a campaign based on public distrust of President Obama’s own health law, which, like Romney’s Massachusetts measure, includes a requirement that all individuals purchase health insurance or be enrolled in a government program.

While Ford and Reagan were clashing over the issues of the day -- particularly the negotiations to cede the Panama Canal to the Panamanians and what Reagan said were concessions to the Soviets in Eastern Europe -- there is little practical difference on current policy prescriptions between Santorum and Romney. Santorum, though, argues that Romney is insincere in his positions and would move left as nominee or president and abandon conservatives. Romney counters that Santorum is power hungry and has repeatedly violated his own positions on a host of issues in order to advance his own career.

While Ford and Reagan were fighting over policy, Santorum and Romney are attacking each other over character.

To keep the fight going, Santorum has been ratcheting up his rhetoric about Romney’s Massachusetts health law. The hot-tempered former lawmaker has repeatedly had to defend stinging attacks, including a statement that he later explained was meant to be in the voice of the American electorate suggesting that it would be better to keep Obama in office rather than take a chance on Romney and his changeable views.

On Sunday, campaigning in Wisconsin, which holds its crucial primary next week, Santorum said that the health law issue was disqualifying to Romney. Resorting to hyperbole, Santorum said that any one of the approximately 55 million other Republicans in the nation would be a better choice.

Repeatedly asked to explain his flourish by reporters after the speech, Santorum told Jeff Zeleny of the New York Times: “Quit distorting my words. It’s bull****.” He followed intemperance with intemperance.

Cussing at a New York Times reporter has considerable appeal in Republican circles, and Santorum is today embracing his outburst, launching a fundraising appeal centered on his fragrant response.

But it is hard to imagine Reagan being so snappish or profane with the cameras rolling. He and his handlers were supremely image conscious, even as they pursued Ford in 1976.

If Santorum is unable to ruin Romney’s chances of nomination and pull off a convention floor victory, he is already laying down the argument for his status as the next in line for the nomination. Repeatedly invoking Reagan in 1976 is also an invocation of Reagan’s next role: leading the party out of the post-Watergate wilderness and on to smashing victories in 1980 and 1984.

Here’s the catch: If Santorum doesn’t get more wins now, the process will soon be over. But the harder he swings in his bid to score the game-changing victories he needs, the harder it will be for him ever to win the moderate support necessary to unify the party as Reagan did.

Santorum credits his own ferocity and freewheeling style for bringing him from crushing defeat in 2006 to second place in the 2012 nomination process and is unlikely to change his approach at this point.

Data Point: Afghan Shooting Payments

“$4.76 million.”

-- The Afghan purchasing power of each $50,000 payment made to the families of those killed in a U.S. soldier’s shooting rampage. Injured Afghans received $11,000, equivalent to $1.05 million.

Chris Stirewalt is digital politics editor for Fox News, and his POWER PLAY column appears Monday-Friday on FoxNews.com.