So What’s This About Muskets and the Commerce Clause?

In their desperation to make ObamaCare’s individual mandate not seem blatantly illegal, liberals have taken to citing a 1792 law requiring Americans to purchase muskets as proof that they’re not stretching the Commerce Clause beyond the Founders’ intent. Too bad for them that Randy Barnett at Volokh nuked that argument over a month ago:
5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service. 
a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?
Congress was relying on its Article I, section 8 power “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.
b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?
It would not.
c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government? 
Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.
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Barack Obama and the Left’s Willful Anti-Constitutionalism

The Obama Administration reportedly plans on tweaking the case for ObamaCare’s constitutionality it’ll bring before the Supreme Court, shifting its emphasis from the Commerce Clause, which empowers Congress to “regulate commerce…among the several states,” to the Necessary and Proper Clause, which empowers Congress to “make all laws which shall be necessary and proper for carrying into execution” the federal government’s constitutionally-authorized powers:
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
You don’t need to have spent so much as a day in law school to understand that this does nothing to improve the White House’s argument. The Necessary & Proper Clause only helps if the objective is identified by the Constitution, and they’re still relying on the commerce rationalization. Unfortunately for the Left, if we’re going by what the Constitution actually means rather than what they want it to mean, we already know that’s a dead end. Alexander Hamilton explained the Commerce Clause in Federalist 22:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
In other words, the intended purpose of Congress’s power to regulate interstate commerce was specifically to prevent the states from discriminating against one another through over-regulation, to erect a uniform standard that would keep the interstate flow of commerce mostly un-regulated. Further, Hamilton’s clearly talking about regulating the actions of state governments, not of individuals. Nothing in the Constitution comes even close to empowering the federal government to compel individuals to purchase a good or service. (For more on the Founders’ understanding of the Commerce Clause, see here.)
The most important thing to understand about this story is that this is not a difficult conclusion to draw. If you have a proper understanding of the purpose behind a written Constitution and how to interpret it, then the rest of the exercise mostly takes care of itself. One need not engage in much heavy theorizing or interpretation thanks to the simple fact that, in most cases, those who wrote the Constitution told us exactly what they meant.
In particular, Barack Obama has no excuse not to know better, considering that the man taught constitutional law. But as Ben Shapiro has been chronicling, Obama’s teaching was defined by an agenda to mislead his students about the law, making originalism subservient to his personal ideology. As president, Obama explicitly chose Supreme Court Justices based on criteria other than their judicial excellence, and his administration has been defined by chronic disregard for any limits on federal and executive power.
Simply put, Barack Obama has no respect for the oath he took to “preserve, protect and defend the Constitution,” and he’s getting away with it in large part because our society doesn’t teach its citizens sufficient constitutional literacy to recognize it. I’ve said it before, and I’ll say it again: conservatives can’t restore America’s founding principles if we don’t wake up and work to break the Left’s stranglehold on education.

Rick Santorum, Individual Mandates, and Why Gingrich Apologists Deserve Romney (UPDATED)

Especially since the field narrowed, a big part of Rick Santorum’s appeal is that he’s the only serious candidate who has never supported an individual mandate to purchase health insurance, and he’s darn good at explaining why. Earlier this morning, the Right Scoop posted a story which initially threatened to undermine that by suggesting he had supported one in 1994. Fortunately, the Right Scoop updated the original post with more information revealing that the initial characterization of Santorum’s position was incorrect, and then with a 1994 video of Santorum passionately arguing against any such mandate.
Last night, David Freddoso said he “will never understand how Newt became a more acceptable not-Romney than Santorum.” That’s easily the biggest, most tragic absurdity of this entire primary: People are desperate for a more reliably conservative alternative to Mitt Romney, which is understandable, but instead of the obvious choice right in front of them, so many rally around a candidate that’s just as ideologically compromised as Romney, far more personally compromised, and is arguably running on a less conservative platform than Romney. And they’re not only rallying around him, but making support for him into an idiotic grassroots-vs.-establishment litmus test. If Romney winds up as the nominee, these shortsighted hypocrites will have nobody to blame but themselves. They certainly won’t be able to blame me – I’m voting for the conservative.

UPDATE: The Weekly Standard’s Jeffrey Anderson says Santorum has misrepresented Gingrich on healthcare, because the mandate isn’t his current position. But I think Santorum’s point is that, if Gingrich has repeatedly expressed support for the idea at the federal level and even endorsed RomneyCare in 2006, then you have to wonder just how sincere his current position is. Or are last-minute flip-flops only wrong when Mitt Romney does them?