In Defense of the Elastic Clause of the Constitution

If college students listened to Mark Levin or Rush Limbaugh, they would receive a better American history education than they are getting from their professors. I recently spoke at Emory University, where one student defended all of President Obama’s unconstitutional actions by invoking the Elastic Clause of the Constitution.


Citing the Elastic Clause could indeed justify a wide range of administration actions, except for one problem – it doesn’t exist.

But you couldn’t tell that to the student at Emory University who came to my speech last week on Obama’s abuses of power. He persisted in defending the actions through the Elastic Clause, as if the be-all, end-all provision was common knowledge.

From the sound of it, the Elastic Clause must be common knowledge in faculty lounges.

The Elastic Clause, he persisted, gives the president the power to address a wide range of issues through executive prerogative. It allowed the government, he said, to adapt to new circumstances unlike the age when the Founders wrote the Constitution.

Of course the Founders did include an “elastic clause” of sorts, namely Article V, which gives the people and the states the power to amend the Constitution.

But he wasn’t speaking of something quite so stiff and formal. He wasn’t referring to something that required broad assent. He was referring the Elastic Clause that allows the president to swiftly respond to needs as they arise – sort of like Mussolini and Mugabe did.

He was serious. He really believed the Elastic Clause was real. But the constitutional literacy of a different student was even worse. With a straight face, she defended the exercise of executive power and the issuance of executive orders as constitutional because of the inaction of Congress.


“It’s part of the Constitution that if the Congress doesn’t act, then the president can issue executive orders to fix something,” was her argument.

Even more frightening, the person saying this is an officer of the campus Democrats. A little totalitarian in training.

Naturally, this was all quite an eye opener. I’m no fool when it comes to the institutional left and their corrosion of the system. But to have a student debate me over a verifiably fictional constitutional provision, to have a student presume I was the one making things up when I said the Elastic Clause didn’t exist – that blazed new territory.

All of this illustrates the dangerous rot occurring on campus, facilitated in large part by the faculty. All signs point to their success. Students are learning the lexicon of the institutional left and producing tragic-comedy like complaining about equality at UCLA, and worse. My appearance at Emory was sponsored by the David Horowitz Freedom Center and the College Republicans. Recognize that groups like these are fighting an uphill battle on campus. But without them, college campuses would be intellectually monolithic.

The talk at Emory wandered into the small discrete psychological components of tyranny as described brilliantly in Aleksandr Solzhenitsyn’s Gulag Archipelago. No doubt Mr. Elastic Clause and College Democrat Vice President Edict had never heard of the Nobel Prize winning description of where elastic ideas can lead.


Solzhenitsyn’s great book of the 20th century describes the small ideas of totalitarianism, and the camouflaged embryonic consent that individuals give to tyranny over time. Tyranny isn’t just about gruel with potato peelings day after day and bullets to the back of the head.

I presume Mr. Elastic Clause and Ms. College Democrat Officer will never read Gulag, but if they did, they would learn the story of Georgi Osorgin. Osorgin was imprisoned in the Solovetsky Islands in the early 1920s. The date was important because American leftists (such as some Democrats of the 1960s) like to pin the mass murder system only on Stalin. But Solzhenitsyn documents that the gulags were a necessary part of Lenin’s vision of the International Brotherhood. Without terror, his system would not work.

Solovki Prison Camp

Solovki Prison Camp

Osorgin was to be shot, but he begged his jailers for a few more days because his wife was coming to visit him at the gulag. Osorgin’s wife visited him, then as her boat pulled away from Solovetsky Island, keeping his part of the bargain, he undressed to be shot. Niceties were part of the gulag in the early days because nobody really knew where the fledgling system was headed.


But still, someone did give them those three days. The three Osorgin days, like other cases, show how far the Solovetsky regime was from having donned the armor of a system. The impression is left that the air of Solovki strangely mingled extreme cruelty with an almost benign incomprehension of where all this was leading, which Solovetsky characteristics were becoming the embryo of the great Archipelago and which were destined to dry up and wither on the bud. After all, the Solovetsky Islands people did not yet, generally speaking, firmly believe that the ovens of the Arctic Auschwitz had been lit right there and that its crematory furnaces had been thrown open to all who were ever brought there. (But, after all, that is exactly how it was!)

People there were also misled by the fact that all their prison terms were exceedingly short: it was rare that anyone had a ten-year term, and even five was not found very often, and most of them were three, just three. And this whole cat-and-mouse trick of the law was still not understood: to pin down and let go, and pin down again and let go again. . . .

Here too, on the first islands of the Archipelago, was felt the instability of those checkered years of the middle twenties, when things were but poorly understood in the country as a whole. Was everything already prohibited? Or, on the contrary, were things only now beginning to be allowed? Age-old Russia still believed so strongly in rapturous phrases! And there were only a few prophets of gloom who had already figured things out and who knew when and how all this would be smashed into smithereens.


I explained to the students that a written Constitution, free from the phony Elastic Clause and power for a president to issue edicts, is what keeps them free. It is what lets them have fun and have a good life. Structural constraints on the power of government allow people to experience joy, worship God, build dreams and fulfill potential. Our Constitution does not have an Elastic Clause for a very good reason. It was established to be inelastic absent the consent of three quarters of states. It was established to lay down fundamental ironclad restraints on the power of government, especially the executive branch.

Some are trying to redefine freedom away from this ideal and toward freedom from want.

That it is becoming fashionable to reject our particularly American version of freedom deserves an overpowering response.


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