Last Monday, the New York Times ran an editorial, “The Republicans and the Constitution,” lamenting how Elena Kagan’s nomination “has become a flashpoint for a much larger debate about the fundamental role of American government.” (I, of course, was hoping that this was the direction the debate would go.) The Old Gray Lady was particularly aghast that Congress’s expansive use of the Commerce Clause was being maligned. Don’t those retrograde obstructionists know that as long as the government passes laws the progressive elite — especially the New York Times editorial board — deigns beneficial, no silly constitutional arguments can possibly be germane?


As you could expect, I found quite a bit to quibble with here, so I wrote a letter to the editor. My letter wasn’t published, but you can still read it here:

Your editorial stumbles onto an inconvenient truth: The debate over Elena Kagan’s nomination is indeed one about the “fundamental role of American government.” That’s a good thing! The opposition to Kagan is not based on petty partisanship or the politics of personal destruction but instead on principled concerns about whether the nominee sees any constitutional limits on federal power.


You rightly focus on the Commerce Clause aspect of this issue because so many federal excesses have been perpetrated in that provision’s name. But if Congress can, under the guise of regulating activities that “substantially affect interstate commerce,” tell farmers what to grow in their backyards—as the Supreme Court said in the 1942 Wickard v. Filburn case—is it really so “silly” for Senator Coburn to ask a judicial nominee whether, in the name of lowering healthcare costs, Congress can require that we all eat nutritious foods?


You’re also correct that the Court recently approved Congress’s ability to confine sex offenders—but it did so, narrowly, under the Necessary and Proper Clause, after Solicitor General Kagan abandoned the Commerce Clause argument that had been wholly rejected in the lower courts.


And so, as you say, a vote against Kagan is indeed about more than her or President Obama—but that doesn’t mean it’s a vote against various statutes that you like. There are good reasons for arguing that some of these laws weren’t good ideas, but that’s beside the point. The point is that there’s a difference between law and policy and that raising the issue of constitutionality is not an “ideological fuss” or “excuse” but goes to the core of this nation’s first principles. 


The Constitution creates a government of delegated and enumerated—and therefore limited—powers, and so much of the discontent in the country is about the basic question of where the government gets the power to do whatever it wants. Let the debate continue!

Here are some related thoughts from Cato adjunct scholar Tim Sandefur, reacting to the same editorial.