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constitution Archive

Monday

13

December 2010

1

COMMENTS

Court Recognizes the Obvious: Individual Mandate Unconstitutional

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

U.S. District Judge Henry E. Hudson has delivered as expected and ruled that the individual mandate is unconstitutional (the full ruling is available here). Even under the modern Commerce Clause jurisprudence, which itself has long ago turned the clear meaning of clause on its head, there has never been recognized any legal authority compelling individuals to purchase a particular good or service.

The oddity of the ruling is that it didn’t throw out the entire law, despite the lack of a severability clause in the original bill (which would make provisions for severing clauses found unconstitutional so that the bill itself could remain intact). As a practical matter, however, the lack of an individual mandate scuttles the entire affair. The question now is: what will the higher courts do?

Monday

13

December 2010

0

COMMENTS

The Constitution Versus Constitutional Law

Written by , Posted in The Courts, Criminal Justice & Tort

Professor Kerr at Volokh conspiracy observes a common source of confusion in constitutional debates:

[T]here are two semantic alternatives, and those alternatives can be used to generate a lot of confusion. We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. My sense is that the most common way to refer to these two different kinds of claims in our legal culture is that (1) describes what the Constitution presently is or means, and that (2) is what the Constitution should be or should mean. That is, what courts have done is descriptive, and what courts should have done is normative. I’m not saying that is objectively correct: I’m just saying that it is the most common choice of wording. At the same time, you can make a different semantic choice by saying that “the Constitution” means what the courts should have said. If you take this semantic option, (1) is what the courts have said the Constitution is, and (2) is what the Constitution is. Now both are descriptive claims: What the courts have done is descriptive of the courts, and what the courts should have done is descriptive of the Constitution.

He goes on to demonstrate, correctly I think, how these two approaches can lead people to talk past one another.

I have an issue with his overall characterization, however. He seems to have characterized any discussions about the Constitution as one that must necessarily be about constitutional law. That is, one is either describing what Constitutional law should be or what it is. This is not surprising given that he is a legal professional, but I think it’s myopic when lawyers often assume that constitutional law is the only relevant avenue by which we understand the Constitution. It is not.

In addition to the two questions he describes, there are two more. 1) What does the Constitution say, and 2) what should it say? Sometimes these questions overlap with his own, but not always. (more…)

Friday

22

October 2010

0

COMMENTS

Understanding Obama's Fear Of The Creator

Written by , Posted in Big Government

For the third time, Obama has elected to redact “endowed by their Creator” from a recitation of the text of the Declaration of Independence.  No longer a possible fluke, this omission is now a clear pattern. What does it mean?

The reason Obama refuses to say that rights are endowed by our Creator does not come from any religious animosity.  The statement itself, after all, was religiously ambiguous.  Rather, the point of the phrase is to acknowledge that true rights come from our status as human beings, and thus precede the existence of government.  This was necessary to explain why the King of Britain was an oppressor and the colonists were justified to rebel.  Statists resist this view, because such rights then serve as a limit on the power of government.

Obama believes that the state is the originator of all “rights.”  He believes that it’s perfectly valid for him to get together with Nancy Pelosi and Harry Reid and declare that free health care is a “right.” But rights don’t work that way. The danger of this statist view is that, what the state giveth, it can taketh away.  A state that can create “rights” out of thin air can erase them just as easily. Think you have a right to self defense? Not if Obama and the gun haters get their way. Think you have a right to your property? Not when the redistributionists decide that it’s unfair for you to have more while others have less. This is why Obama refuses to acknowledge the origins of our rights, and why his deliberate ignorance is so dangerous.

Friday

8

October 2010

0

COMMENTS

Sunday

3

October 2010

3

COMMENTS

Yes, Even Politicians Must Follow The Constitution

Written by , Posted in Liberty & Limited Government

Politicians take various oaths to defend, protect and support the Constitution. You’d think that fact would be enough for some to realize that all political actors have a responsibility to ensure the legislation they pass is legitimate and constitutional. Not so, says a number of liberal commentators.  Jonah Goldberg correctly takes them to task:

I have been fascinated by [Delaware Senate candidate] Christine O’Donnell’s constitutional worldview,” Slate magazine’s Dahlia Lithwick confessed. O’Donnell had said, “When I go to Washington, DC, the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.”

To which Lithwick, a widely cited expert on the Supreme Court, responded, “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”

Newsweek’s Ben Adler was aghast at the clause in the GOP’s Pledge to America that Republicans will provide a “citation of constitutional authority” for every proposed law. “We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary,” Adler wrote. “An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.”

And a progressive blogger writes in U.S. News & World Report that such talk of requiring constitutionality is “just plain wacky.”

Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Should presidents sign such legislation into law?

According to this creepy logic, there’s no reason for congressmen to even consider the supreme law of the land. Re-impose slavery? Sure! Let’s see if we can catch the Supreme Court asleep at the switch. Nationalize the TV stations? It ain’t unconstitutional until the Supreme Court says so!

Of course, reasonable people understand how absurd all of this is.

There’s rarely anything ‘reasonable’ about statism, an ideology to which the Constitution is a clear threat.

Friday

17

September 2010

0

COMMENTS

Constitution Day Is Here Again

Written by , Posted in Liberty & Limited Government, Waste & Government Reform

I don’t typically prepare long  thoughtful posts in anticipation for days such as this, and this year is no exception. Rather, I’d like to just take a moment to remind all the many bloggers and activists discussing the Constitution today to keep it in mind more than just once a year (I realize most in these groups do not need this reminder).  Every day ought to be Constitution Day.

I also fully endorse this proposal:

House Republicans, marking the anniversary of the signing of the U.S. Constitution, called Friday for members of Congress to adopt a proposal that would require every bill to include language citing its constitutional authority.

The idea was proposed by Rep. John Shadegg, R-Ariz., on Republicans’ “America Speaking Out” website — an online discussion board for legislative ideas. GOP leaders talked up the idea in honor of Constitution Day, being celebrated Friday.

I can think of no other reform both as simple and as powerful as this.  If politicians actually had to go on record justifying the authority for their ideas, the entire policy discussion would inevitably change in the direction of less government.

Wednesday

25

August 2010

0

COMMENTS

Tuesday

10

August 2010

0

COMMENTS

When Soaking The Rich Doesn’t Sell, Soak The Super-Rich Instead

Written by , Posted in Economics & the Economy, Taxes

With the public unconvinced of the wisdom of soaking the rich, the latest hot idea floating around in statist circles is not to soak the rich, but rather the really, super-duper, ultra rich.

In a class-warfare filled screed, James Surowiecki wrote in the New Yorker on the need to “Soak the Very, Very Rich.”

A better tax system would have more brackets, so that the super-rich pay higher rates. (The most obvious bracket to add would be a higher rate at a million dollars a year, but there’s no reason to stop there.) This would make the system fairer, since it would reflect the real stratification among high-income earners…

Ezra Klein then blogged at the Washington Post that he is “very sympathetic to the idea that there should be more tax brackets,” reasoning that  “It would be a lot easier to fight the super-rich than to fight the super-rich, the really rich, the pretty rich, and well-off.” If there was a bracket just for the super-duper-really rich, you see, it could be more easily raised to unconscionable and economy killing levels without public objection.

Adding more tax brackets would complicate an already inexcusably incomprehensible tax code, resulting in increased economic waste and compliance costs, more expenditures on lobbying and even greater uncertainty than is currently holding down economic growth.

Furthermore, tax policy should not be decided based on which group is easiest to demagogue and demonize. Nor is it the purpose of the tax code to enshrine into law a particular view of economic fairness, which in the case of Surowiecki and Klein, means redistribution.

There is one legitimate reason and one legitimate reason only for taxes, and that’s to raise the funds necessary for the limited functions of constitutional government and rule of law. There is no honest assessment of those functions as enshrined in the US Constitution which can find that the present revenues received by the state are insufficient to provide for those functions.

I’m sure it’s too much to ask, but rather than ruminate on which of its citizens the government and its statist boosters should declare war on next, the Ezra Klein’s of the world should think about how government spending can be reduced, and our federal government brought back into the bounds of legitimate, constitutional governance.

Wednesday

4

August 2010

0

COMMENTS

Rejected: Missouri Gives Obamacare A Resounding No

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

As I predicted back in December, the fight over Obamacare has moved to the states.  Several big developments have hit recently which do not bode well for supporters of unconstitutionally government-run health care.

First, a Federal District Court Judge Henry Hudson rejected the government’s attempt to dismiss Virginia’s lawsuit against Obamacare (full decision here).  The establishment line was that legal challenges to Obamacare were just partisan grandstanding, and that of course government has the power to tax a non-economic non-activity through the Commerce Clause.  They were wrong as Judge Hudson noted that Obamacare’s constitutional argument “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.”  Whether or not the court eventually reaches the right conclusion and declares Obamacare’s individual mandate to be unconstitutional remains to be seen, but this is an important first step.

On top of this, the voters in Missouri turned out yesterday to give Obamacare their disapproval.

Tuesday’s 71 to 29 percent blowout vote on Proposition C left no doubt where voters stand as they handed President Obama’s health care law a stunning rejection.

The proposition attempts to protect Missourians from the new federal mandate to buy insurance.

It also tries overturning the new federal prohibitions on insurance companies selling insurance directly to people.

This is just the beginning of the long fight against massive government expansion and government-run healthcare.  But so far, the battles are being won by the side of smart policy and Constitutional governance.

Sunday

13

June 2010

0

COMMENTS

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About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

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