E.J. Dionne Pines for the Days of ... the Eisenhower Administration?

What's been interesting about the ObamaCare debate at the Supreme Court is just how out of touch progressives are with constitutional law. Just to ask whether ObamaCare is constitutional is to draw blank stares from Democrats, who ask incredulously, "Are you serious?" And E.J. Dionne of the Washington Post goes even further to argue that "tea party radicals" have effected a "stealth coup" on the GOP establishment. He writes:

Right before our eyes, American conservatism is becoming something very different from what it once was. Yet this transformation is happening by stealth because moderates are too afraid to acknowledge what all their senses tell them.

Last week’s Supreme Court oral arguments on health care were the most dramatic example of how radical tea partyism has displaced mainstream conservative thinking. It’s not just that the law’s individual mandate was, until very recently, a conservative idea. Even conservative legal analysts were insisting it was impossible to imagine the court declaring the health-care mandate unconstitutional, given its past decisions.

Continue reading for Dionne's examples. I had to laugh when he used President Eisenhower as an example of the good old days of the "moderate" Republican Party:

Today’s conservatives almost never invoke one of our most successful Republican presidents, Dwight D. Eisenhower, who gave us, among other things, federally guaranteed student loans and championed the interstate highway system.

So that's it? To be truly conservative is to expand the size of government, just like Eisenhower.

Not exactly. Guaranteeing student loans is a far cry from attempting to create a market that can then be regulated (like the individual insurance mandate) and the creation of the interstate highway system is exactly the kind of federal regulation expected under the Constitution's enumerated powers.

So what Dionne's really doing is attempting to move the goalposts, to define conservatism as something that it's not.

In case you missed it, Glenn Reynolds had a piece yesterday that put federal and state powers in perspective, "Sunday Reflection: Don't blame Verrilli: Hard to defend the indefensible":

As James Madison wrote in the Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

To underscore this arrangement, the Tenth Amendment provided that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This division of powers was intended to protect freedom by limiting the scope of the powerful national government. It was also intended to reduce the extent of corruption in the federal government. The powers most likely to encourage corruption were left to the states.

This worked pretty well -- it wasn't until late in the 20th century that the federal government started to catch up with state governments in the corruption department. The subjects entrusted to the federal government by the Constitution -- those largely "external" powers -- simply don't lend themselves to corruption. On the other hand, when the government lays a heavy regulatory hand on almost every business and industry, the temptation for those regulated to buy off the regulators -- or to simply buy "protection" from them -- becomes much greater. That has increasingly been the pattern in recent decades, even as, not so coincidentally, the public's trust in the national government has steadily declined. As P.J. O'Rourke famously said, when buying and selling are controlled by legislation, the first things to be bought and sold will be legislators.

There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.

The last time that happened in front of the Supreme Court was in the 1995 case of United States v. Lopez, where Bill Clinton's Solicitor General Drew S. Days III was caught short by questions from the bench in much the same fashion that Obama's Verrilli was caught last week. In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.

If that argument were accepted, the justices asked, what possible limit could there be to federal power under the Commerce Clause? Days couldn't come up with one, and the government lost the case. It was not acceptable, the majority opinion said, to "pile inference upon inference" in order to extend federal power so far beyond its intended limits. "To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."

But Days' argument was straightforward compared with the government's argument in the Obamacare case, where the government's willingness to go so far has placed the court in an uncomfortable position: Since Roosevelt's court-packing scheme of 1937 and the "switch in time that saved nine," the court has been willing to let Congress do almost anything it wants under the commerce power. But to uphold the Obamacare statute, the court would have to remove the word "almost." The trouble is, since we know that Congress isn't supposed to have unlimited powers under the Constitution, any argument that would, if accepted, grant Congress unlimited powers must therefore be wrong.

Will the court be willing to remove the "almost" and let Congress do anything it wants under the commerce power? I don't know, but if it doesn't go along with Obamacare, don't blame Donald Verrilli. Instead, blame -- or, rather, credit -- the Constitution.

Progressives don't like the U.S. Constitution because as a legal document there's little in it that justifies the enormous scope of government demanded by radical left-wing ideology. And when conservatives make better arguments on the proper reach of congressional policy-making, progressives start throwing up their hands with cries of coup d'état. But it's not hard to see the real coup has been the encroaching socialization of the economy throughout the 20th century. Now called out on the obscene progressive power grab, leftists recoil in fits of apoplexy.

BONUS: Progressive Barbara O'Brien is another example of teh stupid: "The Right-Wing Coup Continues."