Right Thinking From The Left Coast
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Tuesday, December 14, 2010

The Limits of Power

Radley Balko, building on yesterday’s ruling on the healthcare mandate, asks his Leftie readers a question: do they believe, apart from the Bill of Rights, that the Constitution puts any limits on the power of the federal government? It’s a “you should read the whole thing” thing.

Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Think about what it means.  We have two parties who have rigged the game to ensure that someone from their ranks wins every election, nearly every time. And every 10 years, they gerrymander the districts so as few of us as possible even get that choice. All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.

Whenever conservatives raise the delegated powers issue, liberals tend to roll their eyes.  Nancy Pelosi—our soon to be ex-Speaker—literally asked “Are you serious?” when asked if Congress had the power to mandate health insurance.  Elena Kagan, in her hearings, said the government could order you to eat your vegetables if it decided to.  Clinton’s solicitor general, during arguments in Lopez v. United States, could not tell the justices of any limits to the commerce clause.

To be blunt: it’s very clear that the Constitution was written with the intent of limiting the federal government’s power.  The purpose of things like the commerce clause is not to force politicians to find some twisted logic to use it to do X; the purpose is to tell Congress whether or not it can do X, period.  Thomas Jefferson specifically wrote about playing “this is the house Jack built” with the enumerated powers.  The point is restriction, not justification.

Now maybe that view is out of date.  But if you think so, amend the Constitution.  To quote me:

They key point that critics of originalism miss is that the amendments are part of the Constitution. The most ridiculous criticism I ever heard was from Whoopi Goldberg saying that originalist argument meant she would only get 3/5 of a vote (granted, she have been trying to be funny; it’s hard to tell). But the 3/5 compromise was stripped by the 13th and 14th amendments. No originalist worth his salt would even contemplate that argument.

If you don’t like the implications of the Constitution, you can amend it — as we have done 17 times. If you don’t like the American people having guns, pass an amendment restricting the second. If you think the government should provide healthcare, pass an amendment expanding federal authority. If you think it should ban private discrimination, pass an amendment. That’s part of originalism — that the Constitution can be amended as time goes on.

The benefit is that amending the Constitution makes the rules apparent to everyone. It does not allow courts or legislatures to arbitrarily change our liberties on a whim. (And remember: living Constitution arguments apply to both sides. We saw, with the last Administration, that “living Constitution” arguments can lead to things like ignoring habeas.)

Of course, amending the Constitution is hard. But it’s supposed to be hard. That way, only massive consensus can change the fundamental basis of our government. “Living Constitution” arguments, seen in this light, become the lazy man’s way of changing the Constitution. It’s a way of getting what supporters want without having to get 75% support.

If you believe the enumerated powers are old-fashioned and no longer relevant, why can’t we say the same thing about the First Amendment?  Or the Fourth?  Or the Fifth?  What makes one part of the Constitution sacrosanct and another irrelevant?  That you happen to value one and not the other?  That’s an awfully insular point of view, no?

The point of having a Constitution is to have the rules laid out so that everyone knows where they stand.  When you have a massive section of the political class declaring that they can do fuck-all, there’s really not much point in having a Constitution any more.  Is there?

Posted by Hal_10000 on 12/14/10 at 08:59 PM in Politics   Law, & Economics  • (0) TrackbacksPermalink
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