Whatever he intended — obviously I can’t get into his mind — the chief justice threw down the gauntlet on Thursday to those of us who supported limited government, and laid out a goal. Actually, two — a short-term one, and a longer-term one.
First, he has buttressed the backstop first put in place seventeen years ago, with the Lopez ruling, which said, despite the Wickard precedent, on which the statists had relied for over half a century to justify their predations on freedom, that the Commerce Clause did not grant unlimited authority to the Congress to make the Ninth and Tenth Amendments (which describe the limits of the federal government over the people and the states, respectively) a nullity.
But second, he provided an opening to close the second loophole that he exposed in the current interpretation of the Constitution.
The first and obvious one is that we need to elect a president and a Congress (both houses) in November that will overturn this legislative atrocity. I’m pretty sure, given the word that former governor Romney’s fundraising exploded when the news broke and that the Tea Parties are rallying in reaction, that this is likely to happen.
But I want to talk about the longer term action that needs to take place, particularly since, even though it will take a while, we should start fighting for it now, in this campaign. It should be both an issue and a plank (or multiple planks) in the platform of the Republican convention.
Chief Justice Roberts, advertently or otherwise, has pointed out a flaw in the founding document, and we should use this opportunity, with the anger of the public, to patch it. I propose that we amend the Constitution.