James Taranto: Our 'Constitutional Moment,' The New York newspaperman says our founding document is especially vital today
[Mr. Taranto, a member of The Wall Street Journal's editorial board, writes the Best of the Web Today column for OpinionJournal.com.]
Seth Lipsky has a knack for seeing the bright side of things. A nearly 20-year veteran of this newspaper, including its editorial page, he cheerfully acknowledges the obvious: This is far from a golden age of free-market conservatism. Of President Obama, he tells me over lunch, "I sense that he has a very leftist, socialist-oriented worldview."
Yet this makes Mr. Lipsky anything but grim: "I for one find this very exciting. . . . We're just at a great moment."
Why? Because, he says, "America is in what I call a constitutional moment." Mr. Obama's efforts to expand government power raise basic questions about the constitutional limits of that power. "The enumerated-powers argument is enormous," Mr. Lipsky says. "It's just enormous, the ground that is open for contest here. . . . Right now, we're at a moment where we're not going to be able to turn to either the Congress or the executive branch for help on this." He believes "the only defense now, the only tool we have now, is the Constitution. That's why I call it a constitutional moment, as opposed to a political moment."...
... The optimism that drove Mr. Lipsky to start a daily newspaper in the Internet age also informs his view of the prospects for American governance. "One of the wonderful things about the Constitution is that anybody can play," he says. "Ordinary people asking simple questions have affected the country in enormous ways using this document. . . . It's just astounding the way individual predicaments and problems are used by the [Supreme] Court to lay down broad principles in the country."
To prove his point, he cites examples from the 1930s, the 1960s and the current decade.
The 1935 case of Schechter Poultry Corp. v. U.S. was decided at a time when the liberal political juggernaut looked even more unstoppable than today. Mr. Lipsky describes the facts: Enforcing the National Industrial Recovery Act, which gave the president vast powers to regulate business, "government thugs went into the kosher butcher shop of the Schechter family in Brooklyn, and they arrested its proprietor on criminal charges."
Among the charges: permitting a housewife "to pick which chicken she wanted." This measure provoked some levity during oral arguments at the Supreme Court: "The judges are asking a question about, 'How is the housewife supposed to pick out her chicken when she can't look at it?' Schechter's lawyer reaches over his shoulder into an imaginary cage and starts pitching around for a chicken, and the Supreme Court started laughing."
The justices ruled unanimously in Schechter's favor and declared the act unconstitutional. "They ended the New Deal," Mr. Lipsky says. Then, with more feeling: "They ended the New Deal!" (This overstates the case somewhat. The court later upheld the Social Security Act and the National Labor Relations Act.)...
... Such disappointments notwithstanding, Mr. Lipsky's passion for the Constitution is a tonic for political depression. If ObamaCare does become law, to take an especially worrying example, it isn't hard to imagine a lot of Americans facing "individual predicaments," including threats to their lives from government rationing. It's some comfort to think they'll be able to petition for a stay—and to demand an answer to the question in that old Lipsky memo: "Where the hell does the Congress get the power to do that?"
Read entire article at WSJ
Seth Lipsky has a knack for seeing the bright side of things. A nearly 20-year veteran of this newspaper, including its editorial page, he cheerfully acknowledges the obvious: This is far from a golden age of free-market conservatism. Of President Obama, he tells me over lunch, "I sense that he has a very leftist, socialist-oriented worldview."
Yet this makes Mr. Lipsky anything but grim: "I for one find this very exciting. . . . We're just at a great moment."
Why? Because, he says, "America is in what I call a constitutional moment." Mr. Obama's efforts to expand government power raise basic questions about the constitutional limits of that power. "The enumerated-powers argument is enormous," Mr. Lipsky says. "It's just enormous, the ground that is open for contest here. . . . Right now, we're at a moment where we're not going to be able to turn to either the Congress or the executive branch for help on this." He believes "the only defense now, the only tool we have now, is the Constitution. That's why I call it a constitutional moment, as opposed to a political moment."...
... The optimism that drove Mr. Lipsky to start a daily newspaper in the Internet age also informs his view of the prospects for American governance. "One of the wonderful things about the Constitution is that anybody can play," he says. "Ordinary people asking simple questions have affected the country in enormous ways using this document. . . . It's just astounding the way individual predicaments and problems are used by the [Supreme] Court to lay down broad principles in the country."
To prove his point, he cites examples from the 1930s, the 1960s and the current decade.
The 1935 case of Schechter Poultry Corp. v. U.S. was decided at a time when the liberal political juggernaut looked even more unstoppable than today. Mr. Lipsky describes the facts: Enforcing the National Industrial Recovery Act, which gave the president vast powers to regulate business, "government thugs went into the kosher butcher shop of the Schechter family in Brooklyn, and they arrested its proprietor on criminal charges."
Among the charges: permitting a housewife "to pick which chicken she wanted." This measure provoked some levity during oral arguments at the Supreme Court: "The judges are asking a question about, 'How is the housewife supposed to pick out her chicken when she can't look at it?' Schechter's lawyer reaches over his shoulder into an imaginary cage and starts pitching around for a chicken, and the Supreme Court started laughing."
The justices ruled unanimously in Schechter's favor and declared the act unconstitutional. "They ended the New Deal," Mr. Lipsky says. Then, with more feeling: "They ended the New Deal!" (This overstates the case somewhat. The court later upheld the Social Security Act and the National Labor Relations Act.)...
... Such disappointments notwithstanding, Mr. Lipsky's passion for the Constitution is a tonic for political depression. If ObamaCare does become law, to take an especially worrying example, it isn't hard to imagine a lot of Americans facing "individual predicaments," including threats to their lives from government rationing. It's some comfort to think they'll be able to petition for a stay—and to demand an answer to the question in that old Lipsky memo: "Where the hell does the Congress get the power to do that?"