Slate’s Lithwick says Cuccinelli suit ‘radical’ effort to ‘fundamentally rewrite the Constitution’

It was bound to happen, but just hours after a federal judge deemed the health insurance mandates in Obamacare unconstitutional, MSNBC had a few theories of why the ruling took place, none of which involved the actual constitutionality of Obamacare.

On MSNBC’s “The Rachel Maddow Show,” viewers were treated to Slate.com senior editor and legal correspondent Dahlia Lithwick’s theory of what is going on with the legal challenges to Obamacare.  According to Lithwick, there’s a conspiratorial element behind Virginia Attorney General Ken Cuccinelli’s lawsuit.

He’s trying to rewrite the U.S. Constitution, according to Lithwick.

“But also what I think is really intriguing about the Cuccinelli suit is that it’s what I’m calling an aspirational view of the Constitution,” Lithwick said. “Cuccinelli doesn’t like much about the 14th Amendment, the 17th Amendment. There’s whole chunks of the Constitution that he wants to do away with, right? He’s challenging the EPA’s power to regulate. He’s challenging the birthright – the citizenship provisions of the 14th Amendment. He has a sort of a cut-and-paste view of the Constitution.”

Lithwick can be remembered for her 2006 musings about the Duke lacrosse team rape allegations where she claimed these charges were a statement about society’s failings, specifically on college campuses. Unfortunately for Lithwick, the charges were dropped and the prosecuting district attorney faced jail time for pushing them. But that hasn’t seemed to tarnish Lithwick’s credibility as a legal expert.


Lithwick went on to add that Cuccinelli is relying on Bush-appointed judges to pull off this constitutional caper.

“And I think this is not just about the Obama health care law. I think this is about a rather radical rewriting of the Constitution, and a sensibility that there are enough judges out there – and Rachel I said this often to you in the past, President Bush appointed one-third of the sitting judges on the federal bench,” Lithwick continued.

“And I think there’s a real hope they will not look at what the commerce clause has said, what precedent has said, what case law said, what has happened in the court since 1942 when the judges started thinking about the commerce clause – I think this is a lawsuit that aspires to something different, that aspires to really fundamentally rewrite the Constitution. And I think there’s a real hope there’s enough judges out there, including maybe at the Supreme Court who agree with that project that they think they really have a shot at this.”

Lithwick didn’t get any disagreement from host Rachel Maddow. Maddow called it “conservative constitutional radicalism.”

“Conservative constitutional radicalism is, I think, becoming well-known in legal circles and the political impact of it is only starting to trickle down into how we understand how our politics is working,” Maddow said. “I think you’re right in which this is one of the cases it becomes very, very very clear.”

  • jColes

    Literally every Progressive that I know of — whether a ‘national figure’ or just some Lib I know personally — is operating from inside an alternative universe…they’re all loons to one degree or another…but this person is out there…way, way out there.

    The fact is the 17th Amendment, a Progressive-driven mistake fundamentally altered the relationship among the several states and the Federal government — and should be neutered by repeal so that the states again appoint Senators to represent the interests of the state governments to the central government — as the Founders intended.

    The 14th Amendment needs to be clarified so that it applies only to persons whose direct ancestors were held in involuntary servitude, as intended…that can be done via legislation and does not require a new amendment.

    Even the SCOTUS recognizes limits to the ‘Commerce Clause’ and this judge has read the legal trail correctly…

    So, yeah, this woman is a nut-job, an incompetent nut-job. I will spend no more key strokes on her drivel.

    • Curly

      The Founders also intended that only men should be allowed to vote, should that ammendment be similarly “neutered by repeal” as you suggest for the 17th Ammendment?

      The fact is that the founders were creating a democratic republic out of thin air. They were accustomed to a government of aristocracy, land barrons and royalty and were probably reluctant to give ‘too much’ authority to the masses of people, hence, they created the process to appoint Senators.

      But, of course, none of us can know, with absolute certainty, what was in the founders’ minds at the time. Nor, should we need to know their intentions. The Consitution is a document that we “The People” can (and should) ammend from time to time as our needs as a society evolve. Surely the founders would be astounded to all the complexities that the 20th and 21st centuries have brought and we shouldn’t be applying a strict 18th century mindset to governing our nation.

      • AFederalist

        At the time of the Constitution’s proposal, there was great consternation as to the need for the Bill of Rights. Some Framers argued that if enumerated, these rights might be construed as malleable rather than unalienable, as amendable rather than “endowed by our Creator” by way of the Constitution’s superior guidance, the Declaration of Independence.

        Alexander Hamilton wrote in Federalist No. 84: “I go further, and affirm that bills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous. … For why declare that things shall not be done which there is no power to do?”

        Hamilton’s concerns were both prescient and well founded. The “despotic branch” has, through successive generations of extra-constitutional rulings, treated our Constitution, and especially its Bill of Rights, as, in Jefferson’s words, “a mere thing of wax which they may twist and shape into any form they please.”

        When read in the context in which they were written and ratified, our Bill of Rights is both an affirmation of innate individual rights and a clear delineation on constraints upon the central government, as specified in its Preamble: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution…”

        In Federalist No. 45, James Madison outlined the clear limits on central government power established in our Constitution: “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.” That firm belief served as the basis for the Bill of Rights’ Tenth Amendment: “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.”

        In a letter to George Washington, Thomas Jefferson affirmed, “I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition.”

        The Bill of Rights is the source of Attorney General Cuccinelli’s references to “federalism” and “enumerated powers” which “limit the power of the federal government.” It is, likewise, the basis of Judge Hudson’s ruling.

  • jjsmithers

    That woman is beyond stupid. So far beyond stupid that it is not within any previously known boundaries.

  • mikeyh0

    This woman is so stupid she makes my hair hurt.There is no point in entertaining any of her observations as anything other than the ravings of an idiot.

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