Rather than making necessary cuts to out-of-control spending, California legislators instead are desperately trying to squeeze every penny they can out of businesses--even if those businesses are not in California.

That, of course, is unconstitutional under to the Supreme Court's interpretation of the Commerce Clause. That provision in the Constitution grants Congress the privilege of regulating interstate commerce, which implies a so-called Dormant Commerce Clause--that if Congress has this right then states do not.

The framers of the Constitution included the Commerce Clause in that document because they did not want states to engage in trade protectionism with other states in which states would try to put other states' companies at a competitive disadvantage to their own with trade barriers or excessive taxation.

The power to tax is the power to destroy, after all.

Yet that may be what's happening in California. Flanked by California brick-and-mortar companies, Democratic lawmakers recently introduced legislation that would expose online retailers--which are based in other states--to taxation on their transactions within the state.

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Goodwin Liu is about to become the youngest member of California's 9^th Circuit Court of Appeals. That court is known to be one of the most liberal in the country, and, based on my reading of Liu's book, he'll fit right in.

Liu's book is a both a criticism of originalism--the largely conservative idea that the Constitution's text should be strictly interpreted using meanings that applied when it was originally signed--and an affirmation of the "living, breathing document" approach that gives new meaning to it as the years roll on.

The Constitution endures because its meaning and application have been shaped by an ongoing process of interpretation. That process includes both judicial interpretation and transformations in constitutional understanding pressed by political leaders and ordinary citizens throughout our

history.

Considering that the Constitution is the foundation of our government and the fountainhead from which all other laws spring, it's a little unsettling that Liu thinks that it should shift drastically every decade or two, based on whims from politicians. After all, that's what a foundation is--it's a solid base to build on and its sole purpose is not to move. Isn't that how Liu interprets that word?

Of course not. Liu and other loose constructionists are less concerned with what a word means than with what they want to accomplish with it.  You see, the Constitution was a flawed document written by less evolved men over two hundred years ago. They made all sorts of mistakes in this historical relic, and because it doesn't cover Bluetooth and Internet pornography we can't really rely on it anymore. But we can't SAY that...could you imagine what the peons would say? They didn't go to Stanford and Yale, they wouldn't understand! So we come up with long, boring rulings with exotic words such as "insofar" that basically say that we make things up so we can clean up after the Founders.

And, of course, the express legalization of slavery could not be reconciled with the ideal of a democratic nation dedicated to freedom and equality.

One of Liu's defenses of a loose interpretation of the Constitution is that it's the pragmatic thing to do to keep it from being irrelevant in a 21^st Century society. Nevermind that it has a whole Amendment process that could keep it updated, let's take his argument at face value. The Founders also made a pragmatic decision to not ban slavery right at the outset of the country.  They had just completed a war, and the country had strongly divided northern and southern interests. For the sake of instituting the Constitution, perhaps the greatest document ever written, they agreed not ban slavery for twenty years. They didn't say that we should have slavery, as is often interpreted, they merely allowed it to exist until 1808. Tensions were so high that in 80 years the country would be in a civil war over the same issue--it simply wasn't feasible to ban it right away. And yet that's always the argument that is trotted out to criticize it.

I find Liu's point that the Constitution is outdated puzzling in one other regard. Ultimately, it's a contract. Can contracts really go out of style? If I have a 30-year mortgage fixed at five percent, does Liu think the bank can reinterpret our contract 20 years from now and say, "well, the dollar isn't worth as much as it used to be, so we think you should pay 10 percent interest?"

I don't think he would go along with that. Neither should he go along with the idea of changing the terms of government that has served us well for so long.

You could tell by the panicked look on Congresswoman Lois Capps face that she had no idea how to answer the question, "Is government-run healthcare in the Constitution" when trying to sell universal healthcare to a town hall in Oxnard, Calif. tonight.

She recovered quickly and gave a rambling answer that didn't quite address the question, which is what we've come to expect from politicians. She should have left it at that, but she kept talking.

"It says in the Constitution that there is a right to health, liberty, and happiness," the congresswoman said. Just to show us that this wasn't a slip of the tongue, she was kind enough to reiterate it.

Ouch.

Judging by the immediate reaction of the audience, a full house packed into an AME church, they knew what the congresswoman did not--that she misquoted the Declaration of Independence and then mistakenly referred to it as the Constitution. And Capps was the only person in the room that had taken oath to support and defend that document.

"She doesn't know the Constitution," said Mike Murphy, who was at the town hall. "How can you defend what you don't know?"

The Declaration of Independence reads: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

No mention of "health". We know she didn't read the healthcare bill, but now I'm wondering if she's even read the Constitution and/or Declaration of Independence.