You’ve heard me and others make these arguments, but it doesn’t hurt to hear them repeated with force and eloquence. Roger Pilon, vice president for legal affairs at the Cato Institute and publisher of the Cato Supreme Court Review, writing in the WSJ:
Thus the first question the new Congress should ask of any proposed law is: Does the Constitution authorize us to pursue this end? If not, that ends the matter. If yes, the second question is: Are the means we employ “necessary and proper,” as constrained by the principles of federalism and the rights retained by the people that are implied by a government of enumerated powers? In essence, the Constitution is no more complicated than that. It was written to be understood by ordinary citizens.
How, then, did modern constitutional law get so complicated and federal power so expansive? One reason is that several provisions in the Constitution were written broadly to allow for contingencies. But those provisions were never meant to open the floodgates to boundless congressional power. The presumption was that any political redress of unexpected problems would be done with due deference to the larger structure, aims and principles of the document. This brings us to the main reason Congress leapt its constitutional bounds: a fundamental shift in the climate of ideas.
Early 20th-century Progressives, inspired by European social democracies, rejected the Constitution’s plan for limited government, advocating social engineering schemes instead. Rule by government experts was the order of the day. As people and politicians succumbed to those ideas, especially in the states, courts would often block the schemes in the name of constitutional liberty. When Progressives later took their agenda to the federal level, however, and the Supreme Court continued to block it, President Franklin D. Roosevelt unveiled his infamous plan to pack the court with six new members.
The threat cowed the court, which in a pair of 1937 decisions (Helvering v. Davis and NLRB v. Jones & Laughlin Steel Corp) essentially gave Congress the power to redistribute and regulate at will, eviscerating the very foundation of the Constitution: the doctrine of enumerated powers. A year later, in U.S. v. Carolene Products, the court reduced property rights and economic liberty to second-class status under the Constitution. And in National Broadcasting Co. v. U.S. (1943), it allowed Congress to delegate ever more of its vastly expanded legislative powers to administrative agencies in the quickly expanding executive branch.
Now that one-party rule has ended in Washington, we’ll see President Obama use these agencies to bypass Congress and promote his progressive agenda. On Dec. 23, for example, the Environmental Protection Agency announced a schedule for setting greenhouse gas standards for power plants and oil refineries over the next two years, notwithstanding that Congress has rejected cap-and-trade legislation. The Obama administration has also quietly issued regulations providing for the end-of-life counseling that the Senate rejected when it passed ObamaCare. Expect far more of this in the next two years.
The 112th Congress will have its hands full simply monitoring what the more than 300 federal agencies are up to. But if the new members want to get to the root of the problem—if they want to start restoring limited constitutional government—they’ll have to do far more.
First, they’ll have to keep the debate focused on the Constitution, not simply on policy or practicality.
Second, they’ll have to reject without embarrassment the facile liberal objection that the courts have sanctioned what we have today, and thus all a member need do when introducing a bill is check the box that says “Commerce Clause,” “General Welfare Clause” or “Necessary and Proper Clause.”
If these clauses in the Constitution enable Congress to enact the individual health-insurance mandate, then they authorize Congress to do virtually anything. The Supreme Court was wrong in allowing Congress to exercise power not granted it by the Constitution, and courts today are wrong when they uphold those precedents—even if they’re not in a position today to reverse them until Congress takes greater responsibility.
Third, Congress has to start taking greater responsibility. Congress must acknowledge honestly that it has not kept faith with the limits the Constitution imposes. It should then stop delegating its legislative powers to executive agencies. Congress should either vote on the sea of regulations the executive branch is promulgating or, far better, rescind or defund those regulations, policies and programs that never should have been promulgated in the first place (rescission may not be possible during the next two years, but defunding is). And of course Congress should undertake no new policies not authorized by the Constitution.
This is all a tall order, and it will take years. But the alternative—our Leviathan state, which recognizes no limits on its power—is simply unconstitutional.
[my emphases]
The idea of checks and balances and a tension among the branches of government intended by the founders and framers is obviated by an idea of rule of law that gives 5 unelected justices the power to set themselves up as philosopher kings — a kind of benign, authoritarian oligarchy predicated on the notion that the Constitution, rather than being a document that sets out certain contractual arrangements as part of a social compact, is instead an esoteric and only occasionally relevant curio whose original meaning and intent is too difficult to discern, and besides, it has been replaced by a series of judicial rulings over the years that, as they accumulate, create a rule by precedent that renders the Constitution itself unnecessary.
When the Court has ruled in a way that is unconstitutional, we must be willing to resist such a ruling as illegitimate, and refuse to comply; when bureaucracies saddle us with penalties for refusing to turn over our ostensibly constitutionally protected liberties, we must resist. The time has come to reassert those rights granted by natural law and protected by our founding documents.
Progressives desire to do away with the constraints on their power circumscribed by the Constitution. To do so, they have worked tirelessly to un-tether language from original intent, grant the right of determining meaning to the most vocal “interpretive communities,” and insist that those who wish to adhere to the founding compact are “extremists” — kooky fringe players who lack the sophistication to understand that progressivism’s aims are too important to be artificially restrained by a hoary document written by a bunch of people who couldn’t envision, say, Twitter.
They are who we thought they were.
And, to borrow a phrase, if we are serious about protecting our liberties, well, then we are the ones we’ve been waiting for…
(h/t TerryH)
Yes, yes, and yes again to putting each piece of legistlation to the smell test, but going far beyond that litmus test, why do we not have a Committee of Legistlation Review that culls out all the bad, evil, counter-productive and downright silly federal laws already bloating the books?
On this note: I’d be willing to vote Congress a 10% pay hike if they promise to go home to their districts and enact absolutely no legislation other than a continuing budget resolution fixing spending at current levels. Pay them to do nothing. Like the physician’s oath, “First do no harm…”
Progressives desire to do away with the constraints on their power circumscribed by the Constitution.
Uh, dude? Fait accompli. Our job is to stuff that overbearing, obnoxious, tyrannical genie back in its bottle.
No. More. Wishes.
Or as Lord Voldemort tweeted on Jan 1, “In 2011 I do NOT hope that everyone’s dreams come true. People are idiots. Who knows what kind of messed up shit those people dream?”
Even so, amen.
When the Court has ruled in a way that is unconstitutional, we must be willing to resist such a ruling as illegitimate, and refuse to comply; when bureaucracies saddle us with penalties for refusing to turn over our ostensibly constitutionally protected liberties, we must resist.
Many are afraid to stand up to Leviathan, fearing (rightfully) that the weight of the State will come down upon them. We may not lock up dissidents in this country, but we sure as hell ruin their businesses and their lives when they threaten the power structure.
I think one way we can encourage more of our countrymen to engage in civil disobedience is to continue working at the local and state levels. Washington may have no problem crushing me like a bug, but they’ll have a much harder time squishing the City of Bloomington, or Stafford County, or the State of Texas.
I imagine it’ll start with smaller municipalities and rural counties, which will be spotlighted by the MSM as kooks and crackpots, if they’re acknowledged at all. But within a couple of election cycles, I can envision larger, suburban cities and counties getting on the bandwagon, along with a couple of visionary governors; Washington and their media cheerleaders would have a much harder time laughing these groups off. And, of course, when California comes begging for their bailout to be paid by Texas, all bets are off.
Mr. Pilon touches on one of your great points (more than just because I agree with it 100%) in regards to Stare Decisis.
I think the correct default assumption in examining everything government does, is that the overt purpose is to harm the people in some way greater than the promised benefit.
Therefore the first question to ask is, “Just what the fuck do you think you’re trying to get away with!?”
Only if a thing can be proved completely harmless, should it be allowed to proceed. Give Big Gummint a heaping helping of Precautionary Principle and see how they like it.
“Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.”
http://www.foundingfathers.info/federalistpapers/fed46.htm
With all these statements about original intent, it’s important to note one thing. The founding fathers knew – and intended – that ultimately the power rests with the people. They assumed that the federal government would never overstep it’s bounds because the people would never allow it. At the time, a lot of people wondered if a federal government was necessary – at all.
What the founding fathers do not seem to have considered is a population that increasingly wanted the feds to step in. For you to win, it’s not going to be about reading the constitution and checking boxes. That’s a fools errand. You’re going to need to convince the bulk of America that they do not want a department of education, EPA, FCC, social security, and Medicare/Medicaid.
Good luck with that.
Yeah, alex. Like trying to figure out original intent, convincing people can be hard work.
So let’s give up and strike a blase, world-weary pose.
Wait. Let me go get my beret —
Is it a raspberry beret, the kind you get in a second-hand store? I’m pretty sure the dolphin in a peacoat is wearing it right now.
What have you elided and equivocated in order to reach this conclusion in error?
You don’t seem to get the problem Alex, if you still think it is a question of that sort. It isn’t.
alex writes about what he knows.
Alex is too fucking cool. Alex, we want the United States of America back. You are right in what it seems people want, though, and has others have said, that is the fight. Btw, the founding fathers knew it would be a hard fight, too. Sometimes, things worth keeping are hard to keep.
The founding fathers weren’t too bright, not considering those wanting a larger federal government. You’d think they would have considered writing a document limiting what the fed can do, or something.
[Alex is] right in what it seems people want, though[.]
I wouldn’t go that far.
I think people only want those things because they’ve been told, repeatedly, that they can have those things at little or no expense to them. Disabuse people of the notion that someone other than they themselves ought to pay the cost of government, and many of these programs people want won’t be so wanted after all.
Geeze, Cranky. What is the first rule about the Dolphin in the Pea Coat?
I just think this is a stupid way to go about it:
First, you have to educate people on what those even mean. Then you have to convince them the mountain of legal opinion and precedent is wrong. Here, you’ll get fought to a stalemate because there will be plenty of people that argue that those clauses do give the government those powers. And then (after all that) you finally get to the notion that if social security is a good idea, and you want it, you should get rid of it at the federal level and have it be funded and administered by your state.
Seriously – good freak’n luck.
I would advise starting with the last argument first – maybe social security is a good idea and maybe it’s not, but you’d like it a lot better if it weren’t run by the feds. And oh, BTW, the feds don’t really even have the authority to run these kinds of programs (which kinda explains why they suck so bad).
You’re going to have trouble doing away with the EPA though – on account of teh rivers.
I’m willing to compromise and allow a federal EPA whose power is limited to ensuring that downwind/downriver states are not poisoned by their upriver/upwind neighbors, or at least that the costs of remediation for any such toxic flows are compensated for. But this rump EPA will not have the power to regulate based on local smog issues, or local landfill issues, or global warming issues, and any bureaucrat who tries to assume any such authority will be dipped in nuclear waste.
Who says we’re incapable of compromise?
Then you have to convince them the mountain of legal opinion and precedent is wrong.
Bullshit. You only have to convince them that the bastards in Washington don’t have their best interests in mind, and that their needs can be served a lot better by the bastards closer to home. Couple that argument with the repeated argument that the Founders understood this two centuries ago, which is why we really should return to first principles.
The vast majority of Americans couldn’t give a flying fuck at a rolling doughnut about shit like Chevron v NRDC.
Gee, thanks. It’s so kind of you to give advice, and you don’t even charge for it.
G-d you’re a pompous ass.
You’re slipping cranky. You forgot to ask me what other aliases I’ve posted under.
I assumed you couldn’t read it when I asked, since you never acknowledged it before now. Since you can, in fact, read, why don’t you tell us all about the other names you have used here?
That’s the spirit!
Fuck off, c@nt. Good Allah, are you ever not mendoucheous?
mendoucheous is so 2006, 2007, 2008, 2009, and 2010.
“First, you have to educate people on what those even mean. Then you have to convince them the mountain of legal opinion and precedent is wrong. “
The people are educating themselves, so they need no convincing.
TEA Party?
Be afraid Alex, be very afraid.
They already know it’s wrong. What they need to know now is how to correct the problem.
Looking for libertarian justices who defer to the Constitution rather than the work of previous justices that has become established — even though it is bad law — is a good beginning.
So you have been trolling her for years. Yet, you remain incapable of stating all of the names you have commented under.
It’s very meya-like in some ways, though my memory might be slipping since I kept meya under the hammer.
Same template, different douchebag.
The only real similarity I see between Alex and meya is that both managed to be engaged by people here long after it was obvious that the only sensible thing to do was ignore them.
Abe is a bright man. The wife and I love the city and are there at least once a year and would love to hook up. Anyhow, alex at least shows some libertarian tendencies, unlike meya who is straight statist through and through.
Stare decisis delenda est.
That’s Spanish for “Shave and a haircut, two bits.”
Not sure why that came up.
I can confirm that translation.
Yes, that was an odd thing to say, di.
Abe is much smarter than I am.