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constitution Archive

Saturday

26

November 2011

0

COMMENTS

Can One Want to Follow Even An Imperfect Constitution?

Written by , Posted in Liberty & Limited Government

Politico reporter Reid Epstein is vexed by Republican presidential candidates who promote constitutional fidelity, but yet also call for amending the document:

To hear the Republican presidential candidates tell it, the U.S. Constitution is the guiding light of democracy, a bedrock document so perfect and precise that it shouldn’t be challenged, interpreted or besmirched by modern-day judges.

Except for all the parts the GOP candidates themselves want to change.

The same candidates promising to appoint strict constructionist judges clearly think the Framers, for all their wisdom and foresight, forgot a few things, which they now want to tack on with an array of proposed constitutional amendments that would bulk up the document.

Oh, the hypocrisy! But wait…there is no conflict here at all. Epstein’s piece confuses advocation for constitutional fidelity with a belief that either the document or the Founders are perfect. But that isn’t the point.

By adhering to the supreme legal document of the land we guarantee that we have a nation of laws and not of men. When elected officials decide they know better than the Constitution and disregard it at will, that is no longer the case.

But the Constitution is amendable for a reason. It is necessarily imperfect and needs to be open to change over time. The main point is that doing so through the appropriate means maintains the rule of law and is thus perfectly consistent with views promoting Constitutional adherence.

The choice is not, as Epstein seems to understand it, between either believing that the Constitution is perfect and unassailable or being willing to step out from under its limits where necessary. The real choice is between whether we believe politicians are bound by the limitations clearly established within the Constitution, or that they may act freely within only electoral constraints – a system akin to mob rule.

Friday

30

September 2011

2

COMMENTS

How's That Constitutional Rule Working Out?

Written by , Posted in Liberty & Limited Government

When the new Congress took office, they instituted a rule requiring newly introduced legislation to cite Constitutional authority. So what has been the result? Not surprisingly, a significant number fail to properly identify specific Constitutional authority for legislative action. Research by the Republican Study Committee found that:

  • 3 bills cite only the Preamble to the Constitution
  • 84 bills cite only Article 1, which creates the Legislative Branch
  • 58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress
  • 470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing a specific clause
  • 539 bills cite Article 1, Section 8, Clause 1, which grants Congress its taxing power and contains the “general welfare” and “common defense” language [Editorial note: The “general welfare” clause is a qualifier to the numerated powers, not an additional grant in its own right]
  • 247 bills cite Article 1, Section 8, Clause 18, the “necessary and proper” clause, without citing a “foregoing power” as required by Clause 18.
  • 309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.
  • 87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.
  • 210 bills cite Article 4, Section 3, which provides that Congress hall have the power to make rules and regulations respecting the territory or property of the United States
  • 252 bills cite an amendment to the Constitution. For example, 54 cite the 10th Amendment (power not delegated to the federal government) [Editorial note: What could possibly be the reason for this?], 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).

Please note: Some bills cite numerous sections of or amendments to the Constitution, and may be listed more than once above

It should come as no surprise that so many Congressmen fail to grasp the point of citing the Constitution, which is to identify specific authority or not bother introducing the bill at all. For a long time, members of both the Legislative and Executive branches have abdicated their Constitutional duties to the Supreme Court. They believe that they can simply pass whatever they want, and let the court sort out what is Constitutional and what is not. It is this attitude that the rule was attempting to help change.

If it was the intention of the Founders to give the courts sole concern over questions of the Constitution, they wouldn’t have bothered swearing anyone else to an oath to uphold the document. In reality, all elected officials are supposed to do their due diligence in upholding the Constitution by only acting within its bounds.

Obviously, this rule has not produced a profound shift in the attitudes of lawmakers, but at least it provides an opportunity to name and shame them. I’d love to see an individual or organization do the work and provide research more specifically tied to individual members, so that we can see who really takes seriously their oath, and who does not.

Monday

20

June 2011

0

COMMENTS

Is Iceland’s Constitutional Crowd-Sourcing a Good Idea?

Written by , Posted in Liberty & Limited Government

Iceland is writing a new Constitution, and is taking a decidedly 21st approach to the task:

Iceland is months deep in a project to crowdsource the writing of a new constitution. The recovering European nation’s existing constitution is essentially a carbon copy of Denmark’s, Iceland claiming independence from Denmark in 1944. There were slight adjustments, like replacing the word “king” with “president,” but after the financial crisis that brought Iceland’s economy to its knees in 2008, the country’s decided to start from scratch. The approach uses a combination of social media platforms–Facebook, Twitter, YouTube, Flickr–to gather suggestions from the citizens, and members of a consitutional council post drafts on their website every week.

I’m not entirely sure what to make of this. On the one hand, I like seeing the power of new technology being applied to old problems, political or otherwise. This will certainly increase the number of people involved in drafting their new Constitution than otherwise would have been possible. On the other hand, the big question is whether this approach will produce a better document.

I honestly don’t have an answer to that question. I can see potential dangers in popular passions having too much sway, but the process is not actually democratic (long understood, since Aristotle, to be a bad form of government compared to constitutional republics), as the public is merely giving their input to a constitutional council. How much they are listening is not known to me. Alternatively, it may be that more voices will strengthen the document by enhancing the likelihood of spotting weaknesses, or by settling the question of public interpretation (wherein what is intended is not always what is later understood) up front – that is, if the public is going to interpret Clause X to mean Y, but you really want them to understand it to mean Z, you can find that out before the document is finalized and correct it.

Ultimately, the content of the document will matter far more than the novelty of its construction, and the form of the government need not necessarily be related to that method. A purely democratic method could produce a solid representational document. Likewise, a document written by representatives, as the US Constitution was, could turn out to lack the necessary checks and balances and be overly vulnerable to democratic passions.

For what it’s worth, I scanned a draft that was posted online and wasn’t particularly impressed. With the caveat that I was reading a translation, there were a number of potential ambiguities I saw and a lot I didn’t like ideologically, such as inclusion of minutiae that could leave the country unable to adapt to changing circumstances, as well as the outlining of various “positive rights” – which means the “right” to be given something by the government, i.e. taxpayers. I don’t live in Iceland, and there’s no reason why they must accept my view that real rights can only be so-called “negative rights” derived from natural rights theory, but I just don’t see that form of government being sustainable. But to each their own.

Though if anyone starts taking Fareed Zakaria seriously – something which I caution against out of the principle that fluff nonsense should not be listened to – and tries to do the same here in America, I’ll have a lot more to say on that matter.

Monday

7

March 2011

0

COMMENTS

The Constitutional Wrench

Written by , Posted in Waste & Government Reform

McClatchy is reporting on a new “wrench” being tossed into the legislative process by Senator Jim DeMint. Is he taking a band of supporters and fleeing the Capitol, like Wisconsin Democrats? Is he abusing power as leader of the Senate by constantly filling the amendment tree and denying votes to legislation, like Harry Reid? No, he’s not doing any of those things:

A bloc of Senate conservatives, led by South Carolina’s Jim DeMint, flexed their muscles Thursday, pledging to block any bill they alone deem wasteful or unconstitutional.

Seven other GOP senators joined DeMint’s effort, including three freshman he helped elect in November, and veteran Sen. John McCain of Arizona, the 2008 Republican presidential nominee.

“I’m proud to stand with my fellow conservative Senate colleagues to require thorough review of bills to prevent secret passage of wasteful spending and unconstitutional legislation,” DeMint said.

McClatchy goes on to describe it as an “obstruction pledge.” How sad a commentary it is on the current state of affairs that avoiding waste and unconstitutional legislation is a big monkey wrench of obstruction in the normal business of Washington DC.

Wednesday

9

February 2011

0

COMMENTS

Reining in the Bureaucracy

Written by , Posted in Big Government, Energy and the Environment

Like an unindicted co-conspirator, the bureaucracy is the unofficially acknowledged fourth branch of government. In the centuries since the Constitution was passed, it has grown exponentially in both size and power. Congress has freely delegated power to ruling technocrats to such a degree that it is at least constitutionally questionable. With this in mind:

There is an effort by Rand Paul requiring “both houses of Congress to sign off on all major rules, which are defined as any regulation with a total yearly impact of $100 million or more.”

There’s also a growing effort to rein in the EPA, the most flagrant of extra-constitutional regulatory bodies.

I can only hope that these renewed efforts to rein in various regulatory bodies bears fruit.

Monday

31

January 2011

3

COMMENTS

Judge Vinson Piles On

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

It comes as no surprise at this point, but the major news of the day is that the Judge from my hometown – and whose wife, incidentally, was my 4th grade teacher – has become the second to strike down Obamacare.

Unlike the previous ruling, Judge Vinson found that the unconstitutionality of the individual mandate was enough to invalidate the entire law, as it lacked a severability clause.

Although obviously newsworthy, I’m not sure this ruling changes anything. The Supreme Court was almost certain to take the case already. Sadly, the fate of Obamacare may ultimately be decided by what side of the bed Justice Kennedy rolls out of before oral arguments.

For more on the ruling:

Thursday

20

January 2011

0

COMMENTS

Another Inane Constitutional Theory

Written by , Posted in Health Care, Welfare & Entitlements

The latest crack-pot interpretation of the Constitution to justify Obamacare comes from Rep. John Lewis, who cites the Preamble, the Declaration of Independence, and the 14th Amendment to the Constitution.

Rep. John Lewis (D-Ga.) said on Tuesday that the government should require individuals to buy health insurance and cited the Preamble to the Constitution, the Declaration of Independence’s “pursuit of happiness” language and the 14th Amendment as the sources of Congress’ authority to enact such a mandate.

“I think people should be required to get health insurance. We require people to get insurance for their automobile state by state but the federal government has an obligation to encourage by law, moral persuasion, to get people to get health insurance,” Lewis told CNSNews.com on Tuesday after a House Democratic Steering and Policy Committee hearing in opposition to Republican efforts to repeal the health-care law enacted last year.

CNSNews.com also asked Lewis what part of the Constitution gives Congress the authority to require individuals to buy health insurance.

“Well, when you start off with the Preamble of the Constitution, you talk about the pursuit of happiness,” said Lewis. “You go to the 14th Amendment–it’s equal protection under the law and we have not repealed the 14th Amendment. People have a right to have health care. It’s not a privilege but a right.”

First of all, law is not “moral persuasion,” it is force. But let’s look at the Congressman’s theory, taking each relevant text one at a time. Here’s the Preamble of the Constitution:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

There are no grants of authority in the Preamble. Rather, it makes an affirmative case for the existence of government at all. It explains why they are doing what they are doing in signing any Constitution in the first place. This was important given the context of the founding of the U.S., and the desire of the Founders to establish a legal government with the consent of the governed. They were establishing a contrast with divine right, the historical justification of government until that point. So there is nothing useful to be gained by citing the Preamble as a source for a specific governmental action. It provides none.

Strike one.

Next, the relevant section from the Declaration of Independence:

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

As before, the Declaration establishes no specific authority for governmental action. Nevertheless, it is an important tool for understanding the purpose and scope of our government, so let’s go ahead address his claim contextually.

This sentence is clearly describing the natural rights of man as they exist prior to government – specifically, the rights to life, liberty and the pursuit of happiness, with the latter right being historically interpreted to refer to rights of property. It means much more than just that, describing man’s right to live for himself and pursue the improvement of his station toward whatever goals please him. But in terms of constraining government force, protection of property rights serves as a means to protect the pursuit of happiness.

Regardless, it doesn’t really matter what ‘pursuit of happiness’ means in this context, because the sentence is not describing a source of government power, but a restraint upon it. These natural rights are said to exist before government, and therefore anything government tries to do cannot be justified by this clause alone, it can only be contradicted by it. As if this weren’t obvious enough by the plain meaning of the words, the fact that it was used to throw off an oppressive government should make it clear. It says simply: these are the rights that man has without government, and any legitimate government must recognize as such and not infringe upon them; to do so is to render said government illegitimate.

Strike two.

Finally, we come to the actual source of specific legislative actions, the Constitution. The 14th Amendment contains five sections, but it really only comes down to one. First, the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As you can see, Sections 2-4 are completely irrelevant, while Section 5 only authorizes legislation based on the authority of the other sections. That leaves us with Section 1, the last chance for Rep. Lewis to find even the slightest shred of authority for an individual insurance mandate needed to avoid complete embarrassment.

The first sentence is again irrelevant, as it deals with citizenship. Very little is left now, so surely Rep. Lewis’ authority must reside herein.  But what’s this? There’s no source of new governmental powers there! All the remainder of the section does is restrict the power of the state governments. Here it is again, with phrases in bold:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

These are all constraints on state governments, passed to prevent state level infractions of Constitutional rights.  Section 5, the sole instance in anything he cited of an actual grant of legislative authority, merely authorizes Congress to legislatively enforce these constraints on the states.

Strike three.

There’s whiffing and then there’s whiffing big time, and this was big time. I’d be hard pressed to pick three more irrelevant clauses to health care legislation than Rep. Lewis has done here.

How sad it is that John Lewis, a leader of the civil rights movement and a man who has come to symbolize the importance of restraints on the ability of governments to violate rights, has so thoroughly failed to understand the source of the protections he now enjoys.

Tuesday

11

January 2011

0

COMMENTS

Next Item on the Crisis Exploitation Agenda: Fairness Doctrine

Written by , Posted in Big Government, Gun Rights

Not satisfied with exploiting a mass murder committed by a nutcase – one too crazy to hold coherent ideological views – by disingenuously trying to shame political opponents into submission to the liberal agenda, the left is now moving on even from the easily predictable push for gun control. Trampling over one Constitutional amendment is not enough, so now they’re also using the event as an excuse to once again call for the return of the loathsome and misnamed ‘Fairness Doctrine’.

Leading the charge is James Clyburn, who tried to tie the shooting to the House reading of the Constitution. We need to “rethink parameters on free speech,” he says. My liberalspeak translator informs me that rethinking the parameters necessarily involves regulations designed to shut down conservative speech, because as the left has so deftly proven, conservatives are the only Hatey McHaters hating the place up.

Imagine how bad it would be if the Democrats still had a majority right now. You might not have any rights left by the time a solid Democratic majority was through not letting this ‘crisis’ go to waste.

Wednesday

5

January 2011

0

COMMENTS

Constitutional Deference is not Theater

Written by , Posted in Media Bias, Waste & Government Reform

The New York Times sneered yesterday at the apparent deference of the new Republican majority to the Constitution. They did not, mind you, call into question area where Republicans might not be as keen on Constitutional enforcement (the Drug War, for instance), which would have been legitimate. Instead they poo-pooed the whole idea of Constitutional government as “theatrical production.”

The Times complained:

[I]t is far from clear what message is being sent by, for instance, reading aloud the nation’s foundational document. Is this group of Republicans really trying to suggest that they care more deeply about the Constitution than anyone else and will follow it more closely?

In any case, it is a presumptuous and self-righteous act, suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation.

Someone should offer the New York Times editorial board a basic lesson in Constitutional history.  The document was not “left open to generations of reinterpretation.” It has one and only one interpretation, and that is the right one.  Rather, it is left open to amendment. That’s not reinterpretation, that’s changing the actual document.

There is plenty of room to debate just what is the one, correct interpretation of the Constitution. But the Times is not interested in doing that here, and has instead satisfied itself by sneering at the very idea that it matters at all.  That newly elected Speaker Boehner, just like all Speakers before him, was sworn in today by vowing to “support and defend the Constitution of the United States,” while affirming that he would “bear true faith and allegiance to the same,” must be all part of that theatrical production of which the Times has no use. One wonders anyway what, exactly, the oath is for if the document was intended to be reinterpreted at will by each new generation.

But despite the best effort of the Times, the Constitution will be, I dare hope, center stage once again in all political discussions. New House rules mandating that all legislation cite its Constitutional authority will hopefully force some public discussions about the document, its meaning, and its purpose in maintaining the integrity of our Constitutional Republic.

Thursday

30

December 2010

0

COMMENTS

WaPo’s Boy Wonder “Confused” by Constitution Written “Over 100 Years Ago”

Written by , Posted in Liberty & Limited Government

NewsBusters recounts the forehead-slapping  encounter on MSNBC:

The Washington Post’s Ezra Klein appeared on MSNBC’s Daily Rundown, Thursday, to mock the incoming Republicans for their stated fixation on the Constitution, asserting that the document is rather old and “confusing.” MSNBC’s Norah O’Donnell dismissed the GOP effort as “lip service” and wondered if it was a “gimmick.”

After playing clips of Republicans claiming they would reject legislation that couldn’t be justified constitutionally, Klein complained, “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.

“More than 100 years ago,” says the Washington Post savant who is at least 5 years old.

Debates over what the Constitution says really don’t differ all that much between people who actually bother to read or take its history seriously. What differs from person to person is how much they even care what it says.

The document itself isn’t particularly confusing. Sure, there are always debatable details and interpretations of particular phrases, but the answers to the big questions are all well known, if not as acceptable. We know, for instance, that the Constitution gives government certain enumerated powers, and reserves the rest for the people and the States. If the power isn’t listed, the federal government can’t do it. Ezra Klein and other statists don’t like this constraint, so they simply wave their hands over how “confusing” the whole mess is and proceed as if it doesn’t exist.

As we saw repeatedly in the last Congress, Democrats were open about their disdain for Constitutional restrictions on the power of Congress (“Are you serious? Are you serious?”). They didn’t bother debating what it says or meant, but contested the very idea that it mattered at all. Working to change this Congressional attitude is no gimmick; it’s just long overdue.