1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/20302/constitutional-law-is-supposed-to-be-different/

Constitutional Law Is Supposed to Be Different

January 6, 2012 by

Alexander HamiltonConstitutional law is supposed to be different from other types of law. But the Obamacare litigation headed to the Supreme Court shows that liberal interpreters of the Constitution have forgotten the distinction.

In common law, intended to maintain the continuity of legitimate expectations, later rulings carry more precedential weight than earlier rulings. Similarly, later legislation can change earlier laws. But the Constitution is supposed to remain “the supreme law of the land;” later deviations are not to create precedents that effectively re-write the Constitution.

Nowhere is the distinctiveness of constitutional law made clearer than in Federalist 78, by Alexander Hamilton, ironically the most “big government” of our founders.

“[C]ourts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.”

“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

“[T]he courts were designed … to keep the [legislature] within the limits assigned to their authority.”

“[W]here the will of the legislature, declared in its statues, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

“No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

“[I]t will be the duty of the judicial tribunals…to guard the Constitution and the rights of individuals … “

In Hamilton’s words, as in those of many of America’s founders, courts must actively maintain constitutional rights against executive or legislative overreaching of their enumerated powers. And that maintenance requires that later divergent precedents are not allowed to preempt the Constitution’s meaning.

However, the liberal “living Constitution” approach has turned the argument of Federalist 78 on its head. Divergent precedents are substituted for the Constitution, which effectively become the “new and improved” highest law of the land

Perhaps the most striking recent example comes from University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, in “Healthy care reform is constitutional,” written for Politico when Constitutional challenges to Obamacare made it clear it would end up before the Supreme Court.

In asserting that constitutional challenges have “no legal merit,” Chemerinsky makes only one direct reference to the Constitution — Article I, Section 8′s Commerce Clause. Even then, his reasoning was not based on the Commerce Clause, but that “The Supreme Court has held that this included authority to regulate activities that have a substantial effect on interstate commerce” (a precedent which allowed the Commerce Clause to be vastly expanded, creating the sole supposedly constitutional justification for the far-reaching new federal regulatory powers that have since multiplied).

Unfortunately, Dean Chemerinsky ignored the Commerce Clause’s application for a century.

Federalist 11 described the Commerce Clause as “a prohibitory regulation, extending … throughout the states,” without which, “this intercourse would be fettered, interrupted and narrowed.” Similarly, Federalist 42 described its role as one of “restraints imposed on the authority of the States” to restrict interstate commerce, rather than authorizing federal dictation of anything remotely related to commerce.

Federalist 45 cemented the Commerce Clause’s narrow scope: “The powers delegated…to the Federal Government, are few and defined … The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people; and the internal order, improvement, and prosperity of the State.” This stringent constraint on federal power made the Commerce Clause one “from which no apprehensions are entertained.” That last statement is particularly revealing, since founders determined to create a limited federal government with only enumerated powers would not have accepted a clause now jokingly called “the everything clause” in law schools, much less without apprehension about how it could turn a limited federal government into a virtually unlimited federal government.

Until 1887, the Commerce Clause was solely invoked to overturn state restrictions on interstate commerce. But then courts began re-interpreting its ban of state-imposed restrictions into an open invitation to almost unlimited federal dictates, particularly in Wickard v. Filburn, in 1942 (the precedent Chemerinsky refers to as definitive constitutional interpretation of the Commerce Clause).

Justice Jackson asserted that “Even if appellee’s activities be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” In other words, the federal power to make interstate commerce regular was twisted to allow banning (far from “removing impediments” to) production (not commerce) occurring in a single state (not among states), on someone’s own private property (which Federalist 45 clearly placed under State control). Anything judged to have a “substantial” effect on commerce (now often equivalent to “having any tenuous connection to”) became fair game for federal regulation.

While never again referring to the Constitution itself, Dean Chemerinsky then uses various versions of “the Supreme Court has held” (or said) seven more times in his article, as if multiplying such precedents proves Obamacare is constitutional.

However, four of those references are to cases that accepted the Wickard precedent (while two important cases limiting its application were omitted), so they do not really represent additional precedents, for the question is whether Wickard‘s ruling upholds the Constitution, making it a valid precedent, or whether it is inconsistent with the Constitution, in which case it should be considered invalid.

Yet another reference to Wickard was that “the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity.” However, whether the Supreme Court has said that is irrelevant, since a century of usage made clear that only commercial activity was in view (and, at least as important, the power envisioned was the power to strike down state restrictions on interstate commerce, not to find some connection to commerce in order to impose federal restrictions on it).

One of the two other Supreme Court references Dean Chemerinsky made was that “Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this.” Unfortunately, that precedent is also inconsistent with the original understanding of the General Welfare clause. As James Madison, “the father of the Constitution” put it, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions…the phrase…was always understood as nothing more than a general caption to the specified powers…” Further, “If Congress…are the sole and supreme judges of the general welfare…everything… would be thrown under the power of Congress … “

After citing such Supreme Court precedents, Dean Chemerinsky concluded that they proved that a challenge to Obamacare “has no basis in the law.” However, virtually every case relied on a serious deviation from the Constitution. In fact, two of those precedents referred to (but not identified) — Wickard v. Filburn and Helvering v. Davis — were the first two examples in Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, and two more — Gonzalez v. Raich and United States v. Butler — were singled out for dishonorable mention. Therefore, it is clear that if the Constitution itself is still considered “the highest law of the land,” rather than precedents that twist it, there is indeed an overwhelming case for overturning Obamacare.

That is why the distinction between constitutional law and other types of law when it comes to precedents, is so important. Should we be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? After all, if the meaning of the Constitution can easily be changed by innovative judicial interpretations, rather than being required to attain the degree of consensus necessary to survive the difficult process spelled out by our founders for constitutional changes, then it cannot be the highest law of the land in practice.

In an important sense, what is at stake in the Obamacare case is the dominant pattern of Supreme Court activity we have seen since the 1930s. Liberal courts create new rights, expanding government powers or eroding freedoms from government control, then conservative courts, out of misguided deference to those precedents, leave them in place. They often make things worse by building further precedents upon them, rather than rolling them back.

Further, if the Supreme Court must defer to earlier precedents, there is no respectable defense for those activist rulings (such as from the New Deal and Warren courts) liberals are now so desperate to defend, since they clearly deviated from earlier constitutional precedents.

Principled interpreters of the Constitution do not advocate overturning precedents that protect citizens from government abuse, which was the primary purpose of the Constitution. That is the essence of what they wish to maintain. But doing so requires overturning laws and precedents blatantly inconsistent with it, to reinstate those rights and protections that have been eroded since it was written.

If the Supreme Court follows the Constitution, Obamacare will be overturned. If Wickard‘s almost unlimited discretion is further expanded (to whether the court will, for the first time, hold that Congress has the power to override non-commerce (choosing not to buy insurance) in the name of regulating commerce), it will be upheld.

The Supreme Court’s consideration of Obamacare offers both hope that important constitutional restrictions on the federal government will be reestablished and risk that they will be further gutted. As Chief Justice Rehnquist wrote in the 1995 Lopez ruling (one of the cases omitted by Chemerinsky), “If we were to accept the government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate,” a chilling prospect for Americans and their liberties. That is, the central issue is whether the Supreme Court will reinstate the Constitution as supreme over precedents that deviate from it. If those radically different precedents are instead upheld, the limits imposed by the Constitution are already a dead letter; it is no more than what James Madison called a mere “parchment barrier” that fails to protect Americans’ rights.

{ 27 comments }

Hume January 6, 2012 at 6:02 pm

Setting aside the merits of the Act, I am stunned to find on this blog this sort of reverence for a fundamental law accepted and promulgated by a small fraction of a populace more than two hundred years ago. The U.S. constitution, as promulgated in 1789, holds no moral authority today qua law.

Eric Evans January 6, 2012 at 7:11 pm

First of all, you are not required to be a chapter and verse Mises/Rothbard fundamentalist in order to be a blogger at LvMI. Diversity of opinion is welcome.

Second, no matter what you think about the ‘moral authority’ of the Constitution (and no matter how much others here may agree with you, myself included), the Constitution is considered the justification for Obama’s health care “overhaul” and so it is the only official avenue people have to repel it. Beyond slowly yet surely teaching about and promoting the message of liberty and freedom, which has been a fantastic success for what it’s worth, this is the best we have to work with right now.

Inquisitor January 7, 2012 at 5:35 am

“chapter and verse Mises/Rothbard fundamentalist”

What is such a thing?

Wildberry January 12, 2012 at 5:49 pm

Eric,

I get your reference to “M/R fundamentalist”. Lot of that going around.

I disagree with your second point, though. The constitution has a high moral authority, in that it is the fundamental set of principles which define our governance system, and as such is unique in the world.

Most who dismiss it out of hand, like Hume here, have not bothered to look into it with any great attention. It reminds me of the Rothbard quote that refers to it being understandable that so few understand economics, but inexcusable to have strong opinions about economics based on that lack of understanding.

Hume’s comment is equivalent to saying that something should be ignored because it is “old”.
Ignorance is bliss, I guess.

Operation: Atlas January 8, 2012 at 10:33 pm

I believe the point of the article is that the Constitution is *supposed* to have authority over other law, and for good reason. No matter how far modern law has deviated from the Constitution, in so doing, it violated the letter and the spirit of the document that was meant to protect our freedoms against a government that the founders of the nation *knew* would try to take those freedoms away. It doesn’t matter if it was two hundred years ago; what the founders believed then should still be, and still is, believed now, and a big reason for this is that we have seen their predictions coming true in many ways. Two hundred years have not changed the nature of people and governments.

Also, no matter how small the group that founded this country was, there exists a very large group of people in modern America who revere this document, because they recognize that it was written with the intention of protecting the freedoms they see being trampled every day. The role of the people is to protect the Constitution, and that is what we’re trying to do, because otherwise, we have a government that can operate with few restrictions, and we have the inevitable consequence thereof, which is tyranny.

Yes, ultimately, the Constitution is just a document, and it’s up to what the people today say, but plenty of people today are saying that they would like to keep their original Constitution, please, and no one has a right to declare those people or their opinions invalid, or to say that they should submit to the opinions of others. That attitude is fundamentally in violation of the concept of freedom.

fundamentalist January 9, 2012 at 11:36 am

Hume, just because laws forbidding theft and murder are thousands of years old doesn’t make them invalid. Age has nothing to do with the validity of law.

The Constitution isn’t just an essay. It was the law. Every judge, president and Congressman takes an oath to uphold the Constitution. By doing so they affirm that the Constitution is still the law of the land.

If people don’t like what the Constitution says, they can always amend it, and have many times. Amendments are the lawful way to keep the Constitution in step with changes in society.

Without the Constitution and its proper interpretation, we are left with nothing but the will of the majority in determining law. So if the majority decided it was OK to enslaves blacks again or move Indians to another country, or imprison all the Japanese, that would be perfectly fine because nothing restrains the will of the majority

Hume January 9, 2012 at 2:43 pm

Thank you for the reply. I disagree with you at a fundamental level. As a legal positivist, I agree with you 100% when you say that “Age has nothing to do with the validity of law.”

I disagree with you, however, when you conflate legal validitiy with moral/political legitimacy. Similarly, the normative force in a law proscribing, e.g., murder is not the *legality* of the law but its content. The concept of political obligation implies a content independent character into the mix. To better understand political legitimacy, political authority, and political obligation, we must first understand what we mean when we talk about “political obligation” and the “obligation to obey the law.” In many cases, it is obvious on its face that we have a moral duty to do what the law requires. For example, the criminal law characteristically forbids murder and rape, assault and fraud. It is clear that in these circumstances, we have a moral duty to do what the law requires. But to analyze the issue of political obligation and political legitimacy in this light is to misconstrue the project. In these circumstances, there is clearly an *external* moral obligation not to, e.g., rape and murder, and this moral obligation is contingent in its relation to the content of the law in question (i.e., law’s definition of the act of rape and murder). In other words, I have a moral obligation not to murder my neighbor *regardless* of whether a law exists proscribing such conduct. In some sense, then, we are morally obligated to *comply with* these laws. The question of political obligation, however, is the question of a duty to *obey*, and the concept of obedience is fundamentally different from that of mere compliance.

Obedience is intimately connected to the source of a command or rule, as opposed to its content. Thus, to “obey” entails adding a content-independent element to the mix. In the case of law, therefore, to say that one has a moral obligation to obey implies that one has a moral duty to act as the law requires because the law requires it. A. John Simmons provides a clear statement of the issue: “A moral duty to obey the law would be a duty to do as the law requires because it is required by valid law (or because of what its being valid law implies), a duty to obey the law as such, not to do as it requires just insofar as it happens to overlap with independent moral duties (which should be discharged whether or not they are also made legal duties).” (Simmons, The Duty to Obey and Our Natural Moral Duties, in CHRISTOPHER WELLMAN & A. JOHN SIMMONS, IS THERE A DUTY TO OBEY THE LAW? 95 (2005)).

The obligation to obey implies that there is moral weight in the mere fact of legality. It is “because it is the law” that generates moral force, not the content of the act prescribed or forbidden. More generally, to claim the existence of political obligation is to claim that there is a moral duty to comply with the dictates of the political process because it is the outcome of the political process. Therefore, the question of political obligation is whether there is a moral obligation to obey the dictates of the political process.

As such, the *source* of a law rather than the mere fact of legality is fundamentally important to its status as legitimate. It is here that I lament the reverence shown towards the framers of the U.S. constitution.

Wildberry January 12, 2012 at 5:55 pm

Hume,
Using your own arguments here, I find support for a Constitution on your own terms.

The prime moral imperrative is consent. Informed consent.

It seems to meyYou just don’t like the idea of being a member of society. Is it that anarchistic independence, “all men are an island” kind of thing? What Eric called a “M/R fundamentalist”?

If you undestood anything about the structure and interconnectedness of the Constitution, you might understand the reverence some of us have our founders, warts and all.

Hume January 6, 2012 at 8:06 pm

“Diversity of opinion is welcome.”

I strongly agree. Perhaps I should have stated “I am consistently disheartened by this sort of reverence for a fundamental law accepted and promulgated by a small fraction of a populace more than two hundred years ago.” I would also add that this reverence is usually a farce and used strategically when it favors certain policy outcomes and ignored when it leads astray, such as when it permits massive restrictions on individual freedom by the 50 states.

CIA Jon January 6, 2012 at 8:29 pm

well said

Mark Tully January 7, 2012 at 9:25 pm

I think holding a “law” as the supreme rule is an interesting paradox. Laws are created by people; they aren’t gods. Saying that constitutional law is different from other kinds of law is only valid when we look toward a constitution as the existential statement of the community’s existence. As such, the community, not the constitution is the sovereign source of power. When the community becomes corrupt, so does the constitution.

Mitch Kordonowy January 9, 2012 at 2:40 pm

See my comment below, but yes, since it is treated as living type of “law”, it’s level of corruption is based on the whim of the day.

Hume January 9, 2012 at 3:04 pm

“Saying that constitutional law is different from other kinds of law is only valid when we look toward a constitution as the existential statement of the community’s existence.”

I would have to disagree with this statement. One *need not* look at a constitution with reverence. At the risk of violating blogging etiquette, here is a post of mine in which I take a third party stance and defend originalist methodology against a claim that it is *necessarily* reverential towards the past or “the community’s existence.”

http://www.reasonabledisagreement.blogspot.com/2011/01/re-originalism-and-freedom_11.html
(I am releatively new to blogging, so I would appreciate it if someone would let me know if I am out of line by linking to my own blog, thanks!). Here is the relevant discussion:

Also, an originalist interpretive methodology does not *imply* a reverence to the past vs. the denial of authority to the present, nor does it imply a vacuous conception of freedom. At most, it implies a kind of distrust for government and legal officials in general. By anchoring the interpretive object in concrete rules, the originalist methodology seeks to limit the discretion of the interpreter (i.e., the norm applier). If the originalist was necessarily preoccupied with the authority of the “founding generation,” she would recognize that many clauses of the Constitution are standards rather than rules (e.g., “cruel and unusual punishment”). Standards require certain evaluative judgments be made downstream by the norm-applier rather than the norm-creator. Thus, the norm-creator, by positing a standard, indicates the intention that evaluative judgments are to be made by the norm-applier. Originalists evince a certain distrust for legal officials by re-interpreting standards into rules (“cruel” means x, y, and z). This distrust may be the result of a variety of different political or pragmatic beliefs. For example, one may believe that (1) the point of having a fundamental legal rule (i.e., a constitution) is to lock in certain political-moral principles that cannot be changed by the whim of those currently in office, (2) the point of having “law” in general is to authoritatively settle political-moral disagreement, and (3) by granting officials wide discretion in interpretation, the point of such a system is undermined because we (the originalist) do not trust officials to interpret the norms in accordance with principles determined to be settled. In such a situation, one may argue for an originalist methodology without any reverence for the past.

Notice that this argument proceeds without denying the moral right of a generation to alter the core principles by which they are governed. Rather, it assumes that a “society” reproduces itself over many generations, that such a society is never made up of a single generation, and the belief that the whole point of establishing a fundamental rule is to authoritatively settle certain disputes such that the fundamental structure of the system need not be in constant flux. Thus, in the event that a generation desires a change of the core principles that the society is governed by, it requires that a vast majority of such a society to agree. The reason for this super-majority requirement is that it permits the fundamental rule of the system to function as a fundamental rule.

There is one further point worth noting. Alternative interpretive methodologies do not imply an added appreciation for the moral authority of a generation to determine the principles by which they are governed. The Dworkinian interpretive methodology is decidedly anti-democratic and places great weight on the past.

I believe that the crux of the political rhetoric is not to be found in any fundamental belief regarding democratic authority and the moral right to determine the fundamental principles of a system. Rather, interpretive methodologies are argued for based on political expediency. If republicans believe that, based on the current judicial climate, judges are likely to overturn their favored legislation, they will argue for whatever interpretive methodology reins in the courts. If democrats believe that, based on the current political climate, state legislatures are likely to produce laws contrary to their favored policies, they will call for an interpretive methodology that produces the results they desire. It cuts both ways and both sides are fraught with contradictions.

Libertarian Jerry January 7, 2012 at 11:56 pm

I think that it is fair to say that, in today’s day and age, that the Constitution has been so twisted and turned that we no longer live in a nation of laws but a nation of men. In reality, the Constitution is no stumbling block to those who desire collectivist answers to retirement benefits,”running the economy,” unemployment benefits,free food,free fuel,assisted housing and now socialized medicine or for that matter any kind of “benefits” programs. This also goes,hand in hand, with bypassing Congress if the President wants to go to war. In fact,I think that its about 80 years too late to try and invoke Constitutional restraints on the growth of the Leviathan State. Yes its true that the Constitution was set up to limit what functions that the Federal government could set out to do. But that is meaningless. Because in today’s day and age the majority of the voting public believes in the concept that the proper role and function of government is to solve the myriad of social/economic problems that America faces today. Very few people (save Ron Paul and a few others) ever question the proper role and function of government in today’s America and where in the Constitution that it allows such activities to occur. Whether because of Cultural Marxism,Public Education,Hollywood or the Mainstream Media America has changed from a nation of basically self reliant people,distrustful of government,to a nation of contented serfs who look to government as their savior not as their nemesis. Constitution or no Constitution.

Operation: Atlas January 8, 2012 at 10:56 pm

L.J., I agree with everything you said. Those of us who value freedom over being “taken care of” have a difficult battle to fight, and honestly, I think people who value freedom are always going to be locked in conflict with those who don’t. It takes work to be free and to stay free, and many people just gravitate toward looking for an easy way out. Trouble is they try to pull the rest of the people along with them, and the easy way out never turns out to be a wise path.

Mitch Kordonowy January 9, 2012 at 2:35 pm

It was 6 months ago a friend of mine, who is a law student, attended a lecture at St. Louis University(SLU) about the US Constitution. His summary was simple: They said because the Constitution has historically been treated as a living document, it is as such. I think my response had something to do with the Federalist Papers, and the circular reasoning in that answer. Oh and the lecture was given by a former Missouri State Supreme Court Justice.
It is a shame.

bill wald January 11, 2012 at 6:37 pm

“In common law, intended to maintain the continuity of legitimate expectations, later rulings carry more precedential weight than earlier rulings. Similarly, later legislation can change earlier laws. But the Constitution is supposed to remain “the supreme law of the land;” later deviations are not to create precedents that effectively re-write the Constitution.”

“Supposed?” Our present legal system is the logical outcome of the Constitution as amended. If this was not the intent then the writers screwed up.

Maybe lawyers should not be permitted to write or interpret the laws. Let the politicians write their bottom line intent. Then experts in English grammar should write the legislation and logicians operating as judges interpret the letter of the law.

Wildberry January 12, 2012 at 6:04 pm

Bill,

Our “present legal system” is a broad brush indeed.

There were a couple of importat showdowns you have to figure into your thinking about this subject.
In 1913, we got the Federal Reserve Act, the 16th Amendment, (income tax) and the 17th (direct election of Senators). The timing is no accident.

During FDRs term, he was overulled by the SCOTUS on some of his socialist price/wage control schemes, and threated to “pack the court” if they wouldn’t get on board. The court backed down, and we haven’t had a decision that didn’t serve to turn the Commerce Clause into a “police power” since Lopez.

The Obamacare cases are historic in that context.

By the way, lawyers do write the laws. Unfortunatly most are lobbyists, not Senators.

Andrea Betsharks January 18, 2012 at 3:43 am

hey there nice post. i keep on reading different economic blogs for news & updates about the industry and the upcoming competitors…keep on writing and sharing.

Alpheus January 18, 2012 at 6:56 pm

While I have seen libertarians split on the belief that tho Constitution was meant to defend liberty, one thing is certain: to the extent that the Constitution defends liberty, the “living document” argument almost always seems to be used to undermine that protection of liberty!

I, for one, believe that while it may have been misguided, ultimately, the purpose of the Constitution has been to defend liberty, and to the extent that it has cemented an American Ideal of liberty into the hearts of the people, it has worked somewhat. And I, for one, can’t help but see the irony of how the doctrine of “living Constitution” is used to kill it. After all, how can we claim that a document is alive, when its very words are twisted to justify actions it was expressly written to prevent?

nate-m January 19, 2012 at 10:37 am

The biggest problem we have with the constitution is that not all the ‘founding fathers’ put a high priority on freedom. There is without a doubt the fact that the country was made ‘less free’ because of the introduction of the constitution. Prior to that each state was a individual legal entity.. it was the constitution that first introduced the federal government into the lives of the population.

Shortly there after the ruling political party was happy throwing people in jail for campaigning against them. To many of the early politicians that were present for the signing of the constitution the ‘freedom of the press’ only meant that you could not put government censors in the publishing room to prevent things from being published… You had the right to say whatever you wanted, but that didn’t mean that the government couldn’t put you in jail for saying it.

And they did just that. Even Thomas Jefferson did not object to the government throwing people in jail for publishing literature that was critical of the ruling party on the grounds that it violated the first amendment. Instead he felt it was the state’s right to not enforce federal laws that they disagreed with and that was the real check on federal power.

The piece of paper is the written agreement. It’s not the limitation to power.. it’s just paper. It can’t stop armed men from violating the laws. Only states enforcing their side of the agreement could keep the Federal power in check.

Alpheus January 19, 2012 at 5:28 pm

You list some of the very reasons I have, that prevent me from defending the Constitution in absolutist terms. But the fact remains, though, that the Constitution *was* an attempt to protect liberty, however flawed, created by Founding Fathers who came from traditions of Statism tempered with Liberty. Both forces have always been a part of American politics, and both have been antagonistic towards each other. It’s important to observe that Statism has been getting the upper hand, though, to our detriment…and in opposition to the written words of the Constitution.

nate-m January 19, 2012 at 6:42 pm

If we went back to the ‘constitutional republic’ then I would be very happy with that state of affairs.
I am not the type of person who is a absolutist in my ‘ancap’ sensibilities.

In fact I am willing to accept that a federal government can serve a important role. Namely; the only really ‘just’ role of government is to prevent a more fascist or totalitarian government to take it’s place. Nature abhors a vacuum and I think it is the same way with political power. History has proven that violence is effective in getting what one wants.. if this was not true then we would not be facing the increasingly fascist state that the USA is rapidly descending into.

So I am not against a miniarchists’s viewpoints on this matter. The only possible disagreement is that the constitution is not really enough and we need to improve it to remove the possibility of it being interpreted as a ‘blacklist’ of government powers rather then the much more favorable ‘whitelist’ that it should be.

If we can get to the point were we eliminate the income tax, eliminate the ability to have foriegn military bases, eliminate the power to control free trade, etc etc. Then I could be quite happy with a federal government.

Wildberry January 19, 2012 at 11:26 am

Alpheus,

I agree, most of the “living constitution” view serves to undermine the fundamental principles that, if strictly observed today, would yield a much more libertarian relationship between individuals, states, and the Fed.

The history of the Commerce Clause is a good example. The original purpose was to simply prevent states from taking monopolistic actions against other states. Now it has evolved into a federal “police power”, which was specifically and expressly reserved to the States under the original implementations of the Constitution.

Not only is Fed power to intervene in commerce now pervasive, but the so called “immigration wars” being fought between border states and the Fed are a conflict over the principle that even if the Fed does not do what it is obligated to do (secure the borders, control immigration), the states are powerless to act because the Feds have “occupied the field”. This is dangerous nonsense.

Wildberry January 19, 2012 at 11:18 am

Nate-m
Not to put too fine a point on it, but this is, well, idiotic.

The piece of paper is the written agreement. It’s not the limitation to power.. it’s just paper. It can’t stop armed men from violating the laws.

The Constitution is not a piece of paper, any more than a contract is wood-pulp. Your views are a-historic. In fact, one of the primary motivations for the Federalists was to create the ability to join forces against armed men; the British, French and Spanish, to name a few. Likewise, the entire point of a “police power” is to prevent armed gangs or even armed individuals from prevailing in a conflict. Like many, you simply appear to ignore the parts of reality that don’t accommodate your ideological views.

Even in the world of Ancap utopian dreams, PDAs exist to stop armed men with other armed men. In any case, the Constitution is an agreement made between men in their times and in their historical context, to structure the distribution of this power in a way they felt best avoided the problems of concentration of power that they had personally experienced. It turns out, they were some pretty smart mo-fos, luckily for us.

Only states enforcing their side of the agreement could keep the Federal power in check.

This, on the other hand, I can almost agree with. Although not the “only” way, states have abrogated much of their rightful power, including their complacence in consenting to the 17th Amendment. One of the strategies of those of minarchist bent should be to reduce the Fed, and the President, to a mere shadow of its current self. In order for that to happen, political power must shift away from DC and towards state capitals and municipal politics.

That means, though, that individuals will actually have to take personal responsibility for their political fate, the lack of which explains how and why we have arrived where we are today.
People like you, who just whine about how unfair it all is, represents a characterization of this deficit in the “constant vigilance” part of the liberty equation. In general, I think it is just way too much work. Pouting is much easier and more immediately gratifying.

I always wonder at the thought process of people with your world-view. Somehow you seem to think that any incidence of wrong-doing viewed from a perspective of more than a hundred years later, “proves” that everything else, before and after, must be tainted and invalid. I say this is simply the old and well-worn trick of the ideologue; throwing out the baby with the bathwater.

I have said before that one way of understanding wisdom is the ability to distinguish one thing from another.

Can you distinguish between those historical acts that offend our current moral sensibilities, and the fundamental concept embodied in the Constitution? Warning, it is not easy, and does not lend itself well to sloganeering.

nate-m January 19, 2012 at 6:19 pm

> The Constitution is not a piece of paper, any more than a contract is wood-pulp. Your views are a-historic.

Um…
Actually it’s a particular type of contract. It’s a peculiar form of contract between all the individual states and the federal government they are forming.

As with any contract unless different parties are willing to stand up and enforce the terms of the contract against the other party then all it ends up being is _just_a_piece_of_paper_.

> In fact, one of the primary motivations for the Federalists was to create the ability to join forces against armed men; the British, French and Spanish, to name a few.

This does not contradict anything I said at all. It’s all off in third base. A trip through the rose field. Utterly irrelevant.

Did I say they didn’t have any reasons to form a federal government?
OF COURSE NOT.
So why the hell are you bringing this up?

> Likewise, the entire point of a “police power” is to prevent armed gangs or even armed individuals from prevailing in a conflict.

Still completely irrelevant.

> Like many, you simply appear to ignore the parts of reality that don’t accommodate your ideological views.

You lack the ability to bring a cohesive argument.
Layering insults to your incompetence isn’t helping convince anybody of anything except maybe you are drug-addled.

nate-m January 19, 2012 at 6:25 pm

This, on the other hand, I can almost agree with. Although not the “only” way, states have abrogated much of their rightful power, including their complacence in consenting to the 17th Amendment. One of the strategies of those of minarchist bent should be to reduce the Fed, and the President, to a mere shadow of its current self. In order for that to happen, political power must shift away from DC and towards state capitals and municipal politics.

No shit? Wow I think you have stumbled across something here that nobody has ever thought of before.

Imagine that.. people wanting to stand up for states rights. What a amazing concept.

I always wonder at the thought process of people with your world-view. Somehow you seem to think that any incidence of wrong-doing viewed from a perspective of more than a hundred years later, “proves” that everything else, before and after, must be tainted and invalid. I say this is simply the ol and well-worn trick of the ideologue; throwing out the baby with the bathwater.

I think you lack a intellectual capacity to understand what I even said. Because so far you have not given any indication that you did so.

Comments on this entry are closed.

Previous post:

Next post: