Where are you Frum, anyway?

By Warner Todd Huston

Canadian David Frum is like the cross-eyed marksman, he can see the target but just can't ever hit it. The self-styled conservative has been the Old Media's leading conservative in attacking, well, other conservatives. Naturally his Dec. 25 piece on theweek.com is no exception. Not only does he attack other conservatives, as is his wont, he so badly misreads the Constitution and certain other facts in the healthcare debate, it makes one wonder if he's muffing it all on purpose? He does, however, get one salient fact right: the U.S. has already so ignored the U.S. Constitution that this socialist Obamacare plan will likely be declared wholly constitutional.

Frum's latest frumble asks the question whether or not Obamacare is constitutional? He determines that it is constitutional mainly because Congress and multiple Supreme Courts have already ignored the Constitution so often as to make it likely they will all do so again to OK the illicit intrusion into our lives that is Obamacare.

OK, with his basic premise Frum is right. It is likely that our out-of-control federal establishment will again warp the Constitution to cover yet another socialist abomination. But how he gets to this conclusion is so filled with missteps that it is laughable and further this lapse of sense does not make it actually constitutional. It just makes it a done deal.

First of all Frum says that Obamacare is "unquestionably constitutional." In this he is wrong. It is not constitutional. The Constitution may have become so elasticized as to cover it, but the fact that Congress and the Courts are violating their oaths (again) does not mean that Obamacare is actually constitutional.

That's but his second paragraph. We aren't starting off well are we?

He doesn't do any better with the third.

The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65.

No, no, no. The federal government does not require every American to purchase health insurance through Medicare.

Medicare is "paid for" by payroll taxes. So Frum is wholly incorrect that "every American" is "required" to pay for it. Only people with jobs pay for it. My wife, for instance, does not work because she is a stay-at-home mom. So she pays no Medicare payroll tax. On top of that, most of the costs of Medicare are paid for by means other than the taxes removed from our paychecks meant to fund it (hence why I put "paid for" in quotes above). In truth, no one is being "required" to purchase health insurance as Frum claims.

Frum goes on to say that conservatives should avoid the fine Constitutional idea that Congress may only exercise enumerated powers even though that was the whole reason the Constitution was originally created by the founders. The reason Frum thinks that conservatives should avoid making this argument is that it might make us seem like those court-abusing liberals. You'd be excused if you didn't understand his point. It is, after all, rather senseless.

Frum begins with his recounting of Senators John Ensign (R, Nev) and Jim DeMint's (R, S.C.) desire to call a vote arguing against the constitutionality of the healthcare bill a vote that Frum claims "may have costly consequences."

DeMint's and Ensign's argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do.

After a short history about enumerated powers and how the concept has been so badly violated (and there he is right) Frum says that the Ensign/DeMint vote will be one cast without conviction and only as a sop to the Republican base. In that he may also be right.

So, why will it have "costly consequences"? Here's Frum's explanation:

It was aggressive liberal legalists who tried to use the Constitution to win fights that they could not or would not contest in the court of public opinion. Conservative jurists used to understand, with Robert Bork and Oliver Wendell Holmes, that laws can be unwise without being unconstitutional. As Holmes wrote in his legendary dissent in the Lochner case: "my [judicial] agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law."

Are we suddenly to align ourselves with the Brennans against the Borks, with the authors of Roe v. Wade against the constitutionalism of Alexander Hamilton? Even if it's just a one-day stunt, that's the wrong place to stand.

Really? So, arguing for a to return to Constitutional Principles is "dangerous" because it makes conservatives look like wild-eyed liberals? That's a head scratcher, isn't it? (And I dispute that Oliver Wendell Holmes is anything like a Conservative Constitutionalist!)

Sadly, Frum's points are so untenable and ill considered that they really do detract from the essential truth of his conclusion. With the fact that Obamacare will be passed along and forced on us no matter what Frum is correct. Unfortunately, the road he took to get there was filled with so many wrong turns and dead ends that it detracts from that essential truth.

© Warner Todd Huston