Playing Phil Hare’s advocate

Everyone knows Rep. Phil Hare of Illinois stepped in it this week when he angrily intoned, “I don’t worry about the constitution,”  before adding that his real concern is for everyone who suffers and dies because of a lack of health insurance coverage. When pressed as to how the constitution justified the landmark legislation, Hare said flatly, “I don’t know.”

In case you missed it, here’s the dramatic hand-held video, in which Hare appears to suggest “life, liberty, and the pursuit of happiness” are protected by the Constitution and not the Declaration of Independence:

Putting aside some of Hare’s other missteps — like suggesting that the bill will insure every American, and insisting that he read the 8,,000+ page bill “three times” — we can at least use Hare’s blunder to make a larger point. Truth is, it’s difficult for even seasoned constitutional law experts to figure out whether the comprehensive legislation is constitutional.

At the very least, major portions of this bill, like the individual mandate, constitute an unprecedented attempt to extend the power of the Commerce Clause to economic inactivity, instead of simply economic activity. It’s still not clear whether that’s an illegal overreach, as some experts maintain. Fourteen states have sued to block the enactment of the bill; the rest, presumably, don’t have any constitutional objections to it.

No one was really sure whether Social Security or Medicare were constitutional when they were first passed, of course — especially rank-and-file congressmen, who still couldn’t coherently argue for the constitutionality of most bills they vote on if you gave them all day to do it . While it’s hard to excuse Hare’s first comment that he doesn’t “worry” about the constitution given the heated debate on the issue and his sworn oath to defend the document, and while it’s even  harder to believe that Hare couldn’t even bring himself to mention the words “Commerce Clause” in the three-minute clip, it’s important to note that it’s not technically  job to adjudicate with finality the constitutionality of complicated legislation.

In fact, Hare, the son of a mechanist with no legal background, would probably argue it’s part of his job to propose laws with goals he agrees with that also test the constitutional envelope without, in his estimation, violating it. Whether these laws are ultimately shot down in federal court or not, that’s the only way for jurisprudence to progress, and it’s and how boundaries for all future Congresses are set.

Some, like Hot Air’s Allahpundit, consider the Hare interview “depressing,” and it certainly is in many regards, but it’s also part civics lesson. It’s a reality check that shows how our Congress, unfortunately, works in this day and age. Legislation gets made by people who aren’t constitutional law experts and who think overpopulation can cause all of Guam to capsize, then gets reviewed by those who are and who don’t.

That needs to change, but it’s nothing out of the ordinary. Hare’s comments reveal a deeper problem than it might appear.