Today is Monday, May 14. In 1787, also on Monday, May 14th, in Philadelphia, the Constitutional Convention held its opening session.
Now, two hundred and twenty five years later, we are engaged in a great presidential campaign that, at its most essential level, is about the future of the governmental system the delegates to that convention wrought. For in the last four years we have seen challenges to the long accepted meaning of many of the features and guarantees of the Philadelphia constitution.
In no particular order, here are examples:
- The manner of recent presidential appointments including to the National Labor Relations Board challenged widely shared understandings about the constitutionally mandated advice and consent role of the Senate.
- The expansive and aggressive use of regulation – for example, EPA’s moves to reclassify CO2 as a pollutant because of its supposed impact on climate after Congress had repeatedly rejected similar proposals – has challenged the line between legislative and executive powers.
- By overriding bondholders, this administration’s federal auto bailout arguably challenged long understood constitutional limits to taking property without due process and upset the constitutionally mandated uniform rules of bankruptcy.
- By requiring Catholic and other religiously affiliated institutions to provide health coverage that violated basic denominational beliefs, federal Obamacare challenged the widely understood standards of religious liberty.
- In this year’s state of the union address, the president suggested that during a second term he would compel states to accept his spending priorities as their own, anticipating a challenge to the constitutional concept of federalism, as long understood.
- As former White House counsel Boyden Gray has pointed out, the framing of the Dodd-Frank financial regulation bill that the administration championed so vigorously challenges fundamental constitutional rules regarding judicial review.
- As Supreme Court Justice Anthony Kennedy suggested in the recent high court hearings on the administration’s signature health care legislation, the central feature of Obamacare challenges the long-established relationship between the government and the citizen, in other words, basic constitutional understandings of liberty....
In calls around the country over the last few weeks, I have repeatedly heard anxiety expressed about the future of America’s fundamental institutions: the open economy, the family, religious liberty, as well as the Constitution.