The Coming Constitutional Crisis: What You Need To Know

If successful, twenty-first century constitutionalism will entail the diminishment of deliberative and representative government. The twenty-first century constitutional debate has already been engaged; the only question is whether ordinary citizens, and their representatives, will be participants in this debate, or whether it will take place within the exclusive province of judges and lawyers.

One of the little monthly pleasures of mine is going to the mailbox and finding my latest copy of Imprimis, from Hillsdale College. This neat publication always features a condensed version of a thought provoking speech sponsored by Hillsdale.

From the College website:

Imprimis is the free monthly speech digest of Hillsdale College and is dedicated to educating citizens and promoting civil and religious liberty by covering cultural, economic, political and educational issues of enduring significance. The content of Imprimis is drawn from speeches delivered to Hillsdale College-hosted events, both on-campus and off-campus. First published in 1972, Imprimis is one of the most widely circulated opinion publications in the nation with over 1.8 million subscribers.

As we have embarked on a journey of learning about our Constitution, with the Constituting America project, I felt this month’s featured speech quite appropriate.

Stephan J Markman is a Justice on the Michigan Supreme Court and served as Assistant Attorney General under Ronald Reagan. Below Justice Markman takes us through a real crisis that is looming on the horizon. Conservatives have long warned of the dangers of activist judges, of any stripe, and the damage to Freedom and Liberty, as well as the very fabric of our nation, these judges cause.

From Imprimis:

**The Coming Constitutional Debate


Stephen Markman was appointed Justice of the Michigan Supreme Court in 1999, and was re-elected in 2000 and 2004. Previously, he served as United States Attorney in Michigan; as Assistant Attorney General under President Ronald Reagan, where he coordinated the federal judicial selection process; and as Chief Counsel of the Senate Subcommittee on the Constitution. He has published in such journals as the Stanford Law Review and the University of Chicago Law Review, and has been a distinguished professor of constitutional law at Hillsdale College since 1993.

The following is adapted from a speech delivered in Washington, D.C., on February 25, 2010, at an event sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.



AS ASSISTANT ATTORNEY GENERAL under President Ronald Reagan, I prepared a report for Attorney General Edwin Meese entitled "The Constitution in the Year 2000: Choices Ahead." This report sought to identify a range of areas in which significant constitutional controversy could be expected over the next 20 years. As critical as I believe those controversies were, they pale in significance before the controversies that will arise over the next several decades. The resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution of 1787—the Framers’ Constitution that has guided this nation for most of its first two centuries and has rendered it the freest, most prosperous, and most creative nation in the history of the world.

Proponents of a "21st century constitution" or "living constitution" aim to transform our nation’s supreme law beyond recognition—and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes.

Yes, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitution—not the Framers’ Constitution, but a "constitution for our times," a "living constitution," resembling, sadly, the constitutions of failed and despotic nations across the globe.

This radical transformation of American political life will occur, if it succeeds, not through high-profile court decisions resolving grand disputes of war and peace, abortion, capital punishment, or the place of religion in public life, but more likely as the product of decisions resolving forgettable and mundane disputes—the kind mentioned on the back pages of our daily newspapers, if at all. Let me provide a brief summary of six of the more popular theories of the advocates of the 21st century constitution. In particular, it is my hope here to inform ordinary citizens so that they will be better aware of the stakes. For while judges and lawyers may be its custodians, the Constitution is a document that is the heritage and responsibility of every American citizen.

1. Privileges or Immunities Clause

Since shortly after the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court in the Slaughterhouse Cases (1873) rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to federal courts serving as a "perpetual censor" of state and local governments. This decision has served as a bulwark of American federalism.

Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a 21st century constitution seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.

2. Positive Rights

For the 21st century constitutionalist, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of "negative liberties" into a charter of "affirmative government," guaranteeing an array of "positive" rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, "[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf."

President Obama is correct. The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

Proponents of a 21st century constitution have many grievances with the individual rights premises of our Constitution as written—such as the largely procedural focus of the 14th Amendment’s due process clause, with its old-fashioned conception of such rights as those to "life, liberty, and property"; the negative cast of the specifically-defined rights in the Bill of Rights; and the limited application of the equal rights clause to things that have been enacted by legislatures (as opposed to things that they should have been required to enact). Each of these "limitations" poses significant barriers to what 21st century constitutionalists hope to achieve in reconfiguring America. This explains their interest in employing the privileges or immunities clause, which seems to them open-ended and susceptible to definition by judges at their own discretion.

As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new "rights," and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers; in which the great constitutional issues of the day will focus on whether porridge should be subsidized and housing allowances reimbursed at 89 or 94 percent of the last fiscal year level; and in which a succession of new "rights" will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.

3. State Action

A barrier posed by both the due process and the privileges or immunities clauses, and viewed as anachronistic by 21st century constitutionalists, is the requirement of state action as a precondition for the enforcement of rights. In the Civil Rights Cases (1883), another post-Civil War precedent, the Supreme Court asserted that these provisions of the 14th Amendment prohibited only the abridgment of individual rights by the state. "It is state action of a particular character that is prohibited. . . . The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force." However, for advocates of 21st century constitutionalism, if fairness and equity are to be achieved, the Constitution must become more like a general legal code—applicable to both public and private institutions.

Consider, for example, Hillsdale College. Despite being the embodiment of a thoroughly private institution, government officials have sought to justify the imposition of federal rules and regulations upon Hillsdale by characterizing the college as the equivalent of a state entity on the grounds that it received public grants-in-aid. When in response to this rationale, and in order to retain its independence, Hillsdale rejected further grants, the government then sought to justify its rules and regulations on the grounds that Hillsdale was the indirect beneficiary of grants-in-aid going to individual students, such as GI Bill benefits. Once again in response to this rationale, Hillsdale asserted its independence by barring its students from receiving public grants, even those earned as in the case of GI benefits, and instead bolstered its own private scholarship resources. We have witnessed a steadily more aggressive effort by governmental regulators to treat private institutions as the equivalent of the state, and thereby to extend public oversight.

However, it would be more convenient simply to nullify the state action requirement altogether. Professor Mark Tushnet of Harvard Law School, for example, would reconsider the Civil Rights Cases:

The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.


If Professor Tushnet succeeds in this mission, Hillsdale’s policies concerning such things as tuition, admissions, faculty hiring, curriculum, and discipline will each have to pass the scrutiny, and receive the imprimatur, of judges.

4. Political Questions

In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that "Questions in their nature political . . . can never be made in this Court."

Yet just in the last several years, the Supreme Court, in a series of 5-4 decisions, has overruled determinations made by both the legislative and executive branches regarding the treatment of captured enemy combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that foreign nationals captured in combat and held outside the United States by the military as prisoners of war—a war authorized by the Congress under Article I, Section 8, and waged by the President as Commander-in-Chief under Article II, Section 2—possess the constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of public policy—one on which the sovereignty and liberty of a free people are most dependent, national defense—judges have now begun to embark upon a sharply expanded role.

If there is no significant realm left of "political questions," if there are no longer any traditional limitations upon the exercise of the judicial power, then every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a "case" or "controversy." As a result, every policy debate taking place within government, at every level, will become little more than a prelude for judicial resolution.

5. Ninth Amendment

Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Many 21st century constitutionalists understand this amendment to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges.

Professor Thomas Grey of the Stanford Law School has suggested, for example, that the Ninth Amendment constitutes a "license to constitutional decisionmakers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein." Rights to abortion, contraception, homosexual behavior, and similar sexual privacy rights have already been imposed by judges detecting such rights in the Ninth Amendment. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment "turns somersaults with history" and renders the courts a "day-to-day constitutional convention."

The more conventional understanding of the Ninth Amendment has viewed it in the historical context of the Bill of Rights, of which it is a part. By this understanding, it was written to dispel any implication that by the specification of particular rights in the Bill of Rights, the people had implicitly relinquished to the new federal government rights not specified. Like the Tenth Amendment—which serves as a reminder that powers neither given to the federal government nor prohibited to the states in the Constitution are reserved to the states or to the people—the Ninth Amendment was adopted to emphasize that our national government is one of limited powers. Its principal purpose was to prevent an extension of federal power, not to provide an open-ended grant of judicial authority that would have the opposite effect.

6. Transnationalism

Professor Harold Koh of the Yale Law School, and now State Department Legal Counsel, is perhaps the leading proponent of what he calls "transnationalism," which he contrasts with the "nationalist philosophy" that has characterized American constitutional law for the past 220 years.

Transnationalists believe that international and domestic law are merging into a hybrid body of transnational law, while so-called nationalists persist in preserving a division between domestic and foreign law that respects the sovereignty of the United States. Transnationalists believe that domestic courts have a critical role to play in incorporating international law into domestic law, while so-called nationalists claim that only the political branches are authorized to domesticate international legal norms. Professor Koh predicts that these disagreements will play out in future Supreme Court confirmation hearings, and that these appointments will be "pivotal" in determining by 2020 the direction in which the jurisprudence of the United States proceeds.

In practice, transnationalism would legitimize reliance by American judges upon foreign law in giving meaning to the United States Constitution; it would bind federal and state governments to international treaties and agreements that had never been ratified by the United States Senate much less enacted into law by the Congress; it would render both the domestic and international conduct of the United States increasingly beholden to the review and judgment of international tribunals in Geneva and the Hague; it would expose American soldiers and elected leaders to the sanctions of international law for "war crimes" and "violations of the Earth"; and it would replace the judgments of officials representing the American people, and holding paramount the interests of the United States, with the judgments of multinational panels of bureaucrats and judges finely balancing the interests of the U.S. with those of other nations—including authoritarian and despotic governments—throughout the world.

* * *

It is with the intention of generating debate, and of providing a roadmap to help us better navigate the constitutional forks-in-the-road that will soon be facing our nation, that I offer these thoughts. While there has never been a time in our history in which there was not serious constitutional debate among our people, I would submit that there have been few times in which this debate was more fundamental in defining the American experiment.

Some truly frightening prospects, if this trend isn’t stopped. Unfortunately, with the most radical President we have ever had, a Marxist who was trained to usurp the power of the Constitution through the courts, the chances of a serious constitutional crisis, as described by Justice Markman are almost assured.

This is one more reason that we, as Americans, must come together like never before, and stop the Obama regime in it’s tracks. It will take a generation, or more, to reverse the damage already done by activist judges, who knows what we will face if Obama succeeds in his efforts to make the Constitution irrelevant.

Below is video of the entire speech:







You can read the full transcript here.

To check out Hillsdale College, and subscribe to Imprimis, visit their website here.



**Copyright © 2010 Hillsdale College Reprinted by permission from Imprimis, a publication of Hillsdale College.

Sarah Palin: Even A Constitutional Law Professor Will Tell You, This Is Unconstitutional

This goes against the will of the people. And the process is, as other experts are going to tell you —Constitutional law professors even will tell you — the process that Pelosi is pushing right now is unconstitutional.

-Sarah Palin

Sarah Palin didn’t pull any punches last night when she appeared as an analyst on the Sean Hannity Show. Not only did she blast this health care fiasco and Obama’s propensity to "coddle" terrorists, she also made fun of his constant claim of being a "constitutional law professor."

Obama is rapidly becoming a punch line as people more and more realize the guy is not a leader, and frankly, isn’t all that smart. Anyone who saw the interview Obama did with Fox News’ Bret Baier, the first real interview Obama has had in ages, understands Obama is just not an intelligent man. Baier took Obama to task, and Obama was simply out of his league.

You can read the transcripts and see the video here.

Below is the complete transcript of Sarah’s exchange with Hannity:

Palin Calls Health Care Process 'Undemocratic' and 'Un-American'

SEAN HANNITY, HOST: And this is a Fox News Alert. Now sources on Capitol Hill are telling Fox News that the nonpartisan Congressional Budget Office and their scoring of the Democrats' health care bill will arrive tomorrow.

Now that means that the earliest that a vote could take place in the House is Sunday. Now still tonight the Democrats are short of the 216 votes that they need to pass the bill.

Now it's estimated that up to 50 Democrats have yet to make up their minds on how they will vote. And many of those members are waiting on the CBO score to be released. And until that happen well, we won't know how much that this piece of legislation actually costs.

And joining us tonight now from Alaska is Governor Sarah Palin.

Governor, welcome back to the show.

SARAH PALIN, FORMER ALASKA GOVERNOR: Thank you so much, Sean. Glad to be here.

HANNITY: By the way, David Letterman will be upset, we actually fixed the delays. So thanks again for being with us.

All right. First of all, as you stand, we are all watching this debate on health care. We're talking about 1/6 of our economy. Where you stand, what do you see happening with this bill right now?

PALIN: Unfortunately, I think we're entering this new normal, if you will. The normalcy that will be coming out of D.C. as a result of this corrupt process that Pelosi and Reid and Obama want to use is going to, I think, knock down a gate and herding through the open gate now will be more policy changes, more legislation to follow that will fundamentally transform this nation, as had been promised by Barack Obama.

I think they wouldn't be talking so aggressively, so enthusiastically about actually taking the vote this weekend if they didn't have the votes already lined up. It's unfortunate, but again I think it's a new reality, a new normal in America that this kind of process is being embraced by our leaders in Washington, D.C..

HANNITY: Yes, you know, our own Bret Baier had an interview with the president earlier today. And I thought he did a very good job of pressing the president on the process — on what they're going to deem this bill passed in the House when they never voted on the bill in the House.

And we'll get to the constitutional issue in a second. The president's answer is, that what I can tell you is that the vote that is taken in the House will be a vote for health care reform. He said if people vote yes, whatever form it takes, they're voting for the health care bill.

But that's not really what's happening is it?

PALIN: No. That's not what's happening. And you know, we've spoken a lot, Sean, about what real health care reform, with a lot of broad based support, could look like for America.

It could be patient centered. It could be free market oriented and it could actually have some results. This isn't reform. This is government takeover. This is about control. And the process that's being used by Pelosi — I think she's kind of the front man for this, or the fall-guy for this one, because surely I'd have to believe she's not just thinking this up, this unconstitutional process, but she is the spokesperson for it and the one pushing for it.

I think it's quite unfortunate. And we can't allow ourselves to get down or depressed about this, though. I'm encouraged when I see so many Americans rising up against this process being used.

This has been a really educational time for most Americans to realize that if we do not hold our politicians accountable, if we don't hold their feet to the fire and call them on these made-up deem and pass process that Pelosi and others want to use right now, then things like this can be crammed down our throats.

It's against the will of the people. It's undemocratic. It's un-American, this process, and if we don't stand up and become very, very enthused about calling our politicians on this, then more of this is going to take place.

HANNITY: And the Constitution is very clear on this, which is part of the reason. The New York Post today, pretty stinging editorial on their page today, said Nancy Pelosi is a coward, a bully, and a hypocrite and Barack Obama is hiding behind her skirt.

So what does that make him? What do we to make of — if they have to bribe senators, and we don't know about what's going on in the House right now. We don't know what dollars American people eventually will pay for their votes.

So they're buying votes. They're changing the rules in the middle of the game. They're saying that they voted for a bill. They didn't vote for it. They're only voting for a rule change.

What does it say about where we are in this country right now?

PALIN: This is a scary place for America to be right now, Sean. Everything that our leaders in D.C. are doing now with this Obamacare, this government take over of health care, goes against the will of the people.

We've learned through America's history that the government that governs least governs best. And that all political power is inherent in the people. Government originates just from the will of the people. It's implemented according to the will of the people.

This goes against the will of the people. And the process is, as other experts are going to tell you — Constitutional law professors even will tell you — the process that Pelosi is pushing right now is unconstitutional.

This bill will not have been passed by both Houses in Congress and that is — that's unconstitutional. It's cut-and-dried, it's white and black, it's quite clear to most Americans that this isn't right. And not only, again, does it go against the will of the people, but it goes against our own Constitution. What? The Constitution not worth the paper that it's written on then.

HANNITY: Yes. It really is a question. We're talking about Article 1, section 7 of the United States Constitution.

PALIN: Right.

HANNITY: It is very clear that Congress is required to present the president with a bill that was identical in both Houses. That's not the case. The Senate voted on this particular bill, the House won't even vote on it. This supposed to be specifically a yay or nay vote.

Our mutual friend, the great one, Mark Levin, and the Landmark Legal Foundation, they have now, if this Slaughter rule is used, they have prepared — I've put it up on my Web site. They have prepared a court challenge as to the constitutionality of it. There's also been talk about the constitutionality of mandates.

From your perspective, do you think these — how do you think these will do in court?

PALIN: Well, the legal proceedings and the wrath of the public, our Congress will hear the American voice finally on this. They've gone now a year ignoring the American voice being opposed to this. And I would hope that yes, this will be successful in a court of law, this challenge to this unconstitutional process.

But certainly, the voice of the people via this wrath that Congress is going to feel if they go ahead and adapt this thing, shove it through, it's going to be great. But I think, Sean, that in our lifetime this is the most undemocratic, un-American step that will have ever seen our Congress take.

It's appalling. It's — it takes my breath away that they would think this is OK to do. But again, we can't feign surprise. Remember this is what Barack Obama had promised in the campaign. He said — as a candidate said he was just days away from beginning the transformation of America.

Now a lot of us love America and we don't want to see this transformation into something that is unrecognizable, this European-style of health care in this case we're talking about. But no, so many of us who love America and believe in what our founding fathers providentially had crafted for us via our documents including our Constitution, we don't agree with this fundamental transformation of America that Obama promised us.

We voted for him anyway. He was elected anyway. And now Americans are kind of realizing that's what he meant by a fundamental transformation of our great country.

HANNITY: Governor, stay right there. We're going to have more with Governor Sarah Palin.

(COMMERCIAL BREAK)

HANNITY: And we now continue with former Alaska governor, FoxNews contributor, Sarah Palin. We've talked a lot about the process. The president addressed that in his interview with Bret Baier tonight. And I guess the question is, is that whether they're successful or not, we're looking at all the polls.

First time the president is upside down in the Gallup Poll. Rasmussen poll has had him at some of the lowest ratings he's had since he's been president of the United States. Right track, wrong track, generic ballot — now Republicans are up by 10 points. They haven't been up by 10 points in years.

Is it too early to read what's going to happen in November elections? You know American — the American people at times have been known to have short term memories.

PALIN: Yes, but I think what's going on right now is it's the independent American, the independent thinker, not obsessed with partisanship at all. Probably not even registered in one party or another.

But independent Americans are realizing, OK, we're going down a path that is not good for our country, not good for our children, this debt we're incurring, this takeover of 1/6 of our economy, with health care, this kind of coddling of terrorists.

As we try to win the War on Terror so many independent Americans are saying, you know, I think this next go round in these midterm elections I'm going to be casting my vote differently than how I cast it back in '08.

I think that you're going to see some shift there, Sean. But look at what's going on now in Congress with Pelosi, with Reid, with Obama, we're seeing desperation. Desperate people do desperate things. They are so desperate to get this health care thing passed through, shoved down our throats really, so that there is in their minds a win check mark in that column for President Obama.

That they are resorting to these desperate measures. And this does not bode well for those members of Congress who are up for reelection in the midterms. They're being looked at as a bunch of wimps. They're sheep. They're following something that I think a year or two years ago they would never had considered to follow an unconstitutional process and not actually vote on a bill before they're going to deem that it has been passed.

So this does not bode well on those non-independent thinkers in Congress who are acting like sheep and just going along to get along with Pelosi and with Reid.

HANNITY: That's the odd thing to me. Look, you're in the political world. I understand this is the Holy Grail for rigid ideologues like the president, Nancy Pelosi and Harry Reid. I get where they're coming from. I kind of saw this about President Obama early on.

What I don't get: Is there any Democrat here with a conscience that's going to speak out and say what you just said? That this process is corrupt, unconstitutional?

Now interestingly, the president did when he was in the minority party. Joe Biden did when they were in the minority. Hillary Clinton did when they were in the minority. I mean it's classic hypocrisy. But I would think why would all these Democrats walk the plank? Is it the pressure of wanting to be liked in Washington?

PALIN: They're like a bunch of dead fish. And only dead fish can go with the flow. And that's what we're seeing right now, Sean.

HANNITY: Yes.

PALIN: You know, from my personal experience as mayor and a city manager and as a governor I've had to buck my party many times. I had to go against what the party leadership insisted that members of the party do because I couldn't sleep well at night.

HANNITY: Yes.

PALIN: So I have a hard time too believing that these members of Congress can sleep well at night knowing that they're going against the will of the people, they're going to against our own Constitution. Yet they're going along just to get along with Pelosi and Reid and Obama.

HANNITY: You know, it's interesting because I've been the same way my career. Like I always — I love President Bush. I think he kept the country safe. I opposed him strongly on immigration, opposed him strongly on Medicare prescription drugs, opposed the amount of spending by Republicans.

That independent streak is missing from the Democratic Party. And that's almost —

PALIN: It is missing.

HANNITY: Go ahead.

PALIN: It is missing and that's unfortunate because it's independent almost pioneering spirit that courses through America's veins and has made us into the country that we are. And I think more and more on the left who are just obsessed with this partisanship and obeying the leaders of the party right now to their constituents' detriment.

It's going to catch up with them. And that's what you're seeing, Sean, with the Tea Party movement and with others who are rising up and wanting their voice to be heard. And these are independent thinkers out there in America rising up and being so involved now.

They are wanting from their elected leaders that independence and asking them to have the moral courage to do what is right. Don't just do what your leaders are telling you to do.

Again it's to the detriment of the constituents this path that they are on.

HANNITY: Yes. Everything we talked about. Unconstitutional changes in the rules, last minute, we'll deem the bill passed, we'll buy off senators, we'll buy off congressmen. On top of that this bill creates 159 new offices, agencies, programs, nearly half a billion in Medicare cuts, you know, all — taxpayer covered abortion.

You wrote about this in your latest Facebook. You know, Bart Stupak, supposed to be pro life. A lot of those 12 congressmen apparently are leaving. But you wrote something that he was being told that in fact hey, listen, more children will be born therefore, it will cost us millions more.

Did you actually — you read that quote obviously that he said?

PALIN: Yes, I did. And that — you know it got us back again thinking, too, those who believe that the most promising precious ingredient in this kind — sometimes kind of mixed up world that we live in, is not a child?

A child is the most promising ingredient in this world. And for that type of thinking to be involved now in the Obamacare debate that well, gee, more babies to be born in this world like that would be a bad thing, that's absolutely appalling.

But, Sean, you're making a good point, too. And we have strayed in this last week because we're so concerned about the process that's being used and abused right now to get this thing rammed down our throat that the substance of the bill or bills itself hasn't been discussed as much.

Americans do need to stay focused on what is in Obama care and realize that, you know, there are still, as you point out, the 150 some new bureaucracies and commissions and offices that will be in control of our health care. That's just one aspect of this that we need to get back to remembering what is in this bill.

Tough to remember what's in the bill, though, because as even Obama has suggested, he doesn't even know what's in the bill. Pelosi, she said gee, we've got to pass the bill and then we'll find out what's in it.

HANNITY: Yes.

PALIN: Some scary things going on now.

HANNITY: Governor, great to see you and thanks for being with us. By the way, I've been to 48 of the 50 states. One that I haven't been to is Alaska but that shot behind you, your backyard, it's one of the most beautiful I've ever seen. Quite majestic. And we thank you for being with us tonight.

PALIN: Thanks so much. You got to get up here. It will thaw soon and that's a lake that you can fish in. So come on up and join us.

(LAUGHTER)

HANNITY: All right. The fish better be weary. I'm a pretty good fisherman.

Governor, thank you for being with us.

PALIN: Good. Thank you.

Palin TV has the video and you can view it here.

To learn more about the heroism democrat Congressman Bart Stupak has shown in this struggle, see our story: Bart Stupack: ObamaCare Is A Death Panel For Children