The Washington Post reports that the Constitution will be read on the House floor in January, and more importantly, that every House bill will include Constitutional justification for it.
I think this is an excellent and an interesting move. Tea Partiers and even a lot of libertarians are convinced that people who don't agree with them consider the Constitution to be an anachronism or an embarassment. Of course that's ridiculous. But it is true that the Constitution isn't an explicit part of the legislative process these days.
Tea Partiers think this will force Washington into agreeing with their concerns. I actually think it will have the opposite effect (if Tea Partiers are open to it). It will demonstrate the far more normative interpretation of the Constitution that the Tea Partiers don't even seem to be aware of, and it will educate people who don't normally think in Constitutional terms to stand up to Tea Party bullies who insist they're the ones being true to the legacy of the founders.
I think Republicans not necessarily associated with the Tea Party will also realize that their understanding of the Constitution is largely in line with the Democrats and the rest of the country, they simply take a more conservative stance on the wisdom (but not the Constitutionality) of certain laws.
My advice to our representatives: don't rely as heavily on the Commerce Clause as you have been. I think it's a relatively weak power - I do think the intention of regulating interstate commerce was clear. Real, direct, commercial regulation - even parts of the health reform bill - can legitimately be justified by this power, but it's always a stretch when every single piece of legislation touching the economy is justified by it. You have the power to appropriate money to provide for the general welfare. This was understood as a broad discretionary authority. You can put up money to make public programs for health care and provide subsidies, etc. That is so thoroughly Constitutional it's the power the founders put first on the list of enumerated powers. To make that spending most effective you'll probably need to pass a few rules and regulations, set up a few administrative apparatuses, etc. Those things - to me - sound like necessary and proper measures to help provide for the general welfare. I wish more weight would be given to the general welfare and necessary and proper clauses, and less weight given to the commerce clause.
I think this is an excellent and an interesting move. Tea Partiers and even a lot of libertarians are convinced that people who don't agree with them consider the Constitution to be an anachronism or an embarassment. Of course that's ridiculous. But it is true that the Constitution isn't an explicit part of the legislative process these days.
Tea Partiers think this will force Washington into agreeing with their concerns. I actually think it will have the opposite effect (if Tea Partiers are open to it). It will demonstrate the far more normative interpretation of the Constitution that the Tea Partiers don't even seem to be aware of, and it will educate people who don't normally think in Constitutional terms to stand up to Tea Party bullies who insist they're the ones being true to the legacy of the founders.
I think Republicans not necessarily associated with the Tea Party will also realize that their understanding of the Constitution is largely in line with the Democrats and the rest of the country, they simply take a more conservative stance on the wisdom (but not the Constitutionality) of certain laws.
My advice to our representatives: don't rely as heavily on the Commerce Clause as you have been. I think it's a relatively weak power - I do think the intention of regulating interstate commerce was clear. Real, direct, commercial regulation - even parts of the health reform bill - can legitimately be justified by this power, but it's always a stretch when every single piece of legislation touching the economy is justified by it. You have the power to appropriate money to provide for the general welfare. This was understood as a broad discretionary authority. You can put up money to make public programs for health care and provide subsidies, etc. That is so thoroughly Constitutional it's the power the founders put first on the list of enumerated powers. To make that spending most effective you'll probably need to pass a few rules and regulations, set up a few administrative apparatuses, etc. Those things - to me - sound like necessary and proper measures to help provide for the general welfare. I wish more weight would be given to the general welfare and necessary and proper clauses, and less weight given to the commerce clause.
Posts
Tea Partiers think this will force Washington into agreeing with their concerns. I actually think it will have the opposite effect (if Tea Partiers are open to it). It will demonstrate the far more normative interpretation of the Constitution that the Tea Partiers don't even seem to be aware of, and it will educate people who don't normally think in Constitutional terms to stand up to Tea Party bullies who insist they're the ones being true to the legacy of the founders.
ReplyDeleteI think Republicans not necessarily associated with the Tea Party will also realize that their understanding of the Constitution is largely in line with the Democrats and the rest of the country, they simply take a more conservative stance on the wisdom (but not the Constitutionality) of certain laws.
I agree that this certainly possible, and I hope that it happens. But I will confess to not being terribly optimistic about that. First, I get the sense that many of Tea Partiers elected to Congress earlier this year are not at all interested in acknowledging other possible interpretations of the Constitution. Second, I also think that there are not as many Republicans in Congress not affiliated with the Tea Party that can balance out the Tea Partiers in an effective way, or that even want to try.
More broadly, I am interested to see the reaction when certain Members of Congress introduce bills with constitutional authority statements that actually recognize the common law nature of our republic, e.g. "Congress enacts this bill pursuant to the Commerce Clause in Art. I, as interpreted by the Supreme Court from Wickard v. Filburn (1942) through Gonzales v. Raich (2005). This enactment is distinguished from U.S. v. Lopez (1995) because it concerns activity that has demonstrable effects on the economy..." -- or something like that!
I also agree that the Necessary and Proper Clause is a powerful provision under which a lot of valuable measures could be enacted, but even that is Clause is now under attack (NY Times article on Necessary & Proper Clause arguments).
Messed up that link -- here's the URL:
ReplyDeletehttp://www.nytimes.com/2010/12/29/health/policy/29legal.html?scp=1&sq=necessary%20and%20proper&st=cse
Great - thanks for the link, Scott.
ReplyDeleteYour pessimism is probably justified. Perhaps I should say that it would educate, or at least provide a direct response to the Tea Party - whether it would actually change any minds is a different story of course.
I'd be more optimistic on the Republicans, though. The average Republican is not a libertarian. They do think its ok to have a safety net. They do think its ok to spend money on stuff. We forget this because arguments are often over scope and method - but the average Republican is not a libertarian that thinks that the founders would have considered SS, Medicare, welfare, R&D spending, the space program, highways, etc. unconstitutional. But because they've had this foil of "tax and spend Democrats", they've been able to avoid explicitly acknowledging that they think these things are perfectly Constitutional, they just want them somewhat smaller and more market-oriented (goals I would agree with in many circumstances). These Republicans will break with the Tea Party when Ron Paul tries to abolish the Fed or when other Tea Partiers demand an end to various programs - and with this requirement of a constitutional claim, these Republicans will justify the existing suite of programs in largely the same way that Democrats do.
To everyone else, on Facebook I posted this link and asked people if they knew of good blogs on the Constitution - on legal issues certainly, but also on historical issues and on questions of the relevance of the Constitution in modern society. Scott furnished this one:
ReplyDeletehttp://balkin.blogspot.com/
Haven't gotten a chance to look through in detail, but I'm going to start to follow it.
This "Constitution" angle has been the most self-defeating thing American liberals have done or will ever do.
ReplyDeleteAll human communication is a perpetual process of creating an understanding in another person's mind. Since you do not have access to another person's mind and can not think his thoughts for him, you have to give him a verbal message. But his understanding of that verbal message is based only on how he reads it. He may come close to what you are thinking, but he is always limited to the scope of his ability to interpret what you wrote.
Here's an example. The American tax collecting agency says it will forcefully stop publishing of any book that helps one cheat taxes. Does this violate the First Amendment? HELL NO, IT DOESN'T. The First Amendment says that **Congress** can not abridge freedom of speech or press - that says nothing about the IRS, which is definitely not Congress. But everybody makes this mistake, because their preconcieved interpretations get in the way.
I post occasionally on a site called Chronicles, and a clever Italian by username Sempronius said, "Ultimately, all that is written...is nothing." That bothered Americans on the site.
Prateek - I completely agree on the vagaries of the interpretation of the written word. I think the founders did too and this is why they left it flexible rather than tightly codified. I don't think that's any reason not to have a written constitution, though. It is an argument against an extremely rigid reading of the constitution (whether that rigidity be expansive or not).
ReplyDeleteOn the IRS, though, I'm not sure I'd agree with your logic. The IRS only has power as an agent of the president, and the president is clearly restricted to executing the laws of Congress and commanding the armed forces. If Congress does not have the power to do something, its executors certainly don't.
This isn't to say I think laws like this are unconstitutional - I simply wouldn't use your argument for constitutionality. Tax fraud is a crime. There may be a case for taking legal action against those who aid and abet the commission of that crime. I don't know because I'm not a lawyer, but that at least seems plausible to pursue. But I do think the first amendment is relevant here, and I wouldn't automatically assume the constitutionality of this IRS action.
Oh, and one more thing.
ReplyDeletePlenty of these "Tea Partiers" claim an adherence to Christian values,.etc,.etc.
They should realize they are guilty of heresy. :D ;) It's funny, but it's a reflection of the same kind of mistake.
Many of them have attached divinity to their Constitution and Founding Fathers - a pagan religion of Constitutional Idolatry. They have explicity violated the ages old Second Commandment, that says that no one should carven God unto their own image. Indeed, the Tea Partiers should either say they are not Christian or reject such nationalist idolatry altogether. I am an atheist, and while I am no follower of any Abrahamic tradition, I also don't twist those doctrines for my political gain.
Never since Werner Sombart said that Adolph Hitler was God's executor himself have I seen such blatant political idolatry in an industrial nation. The One Nation Under God painting shows Jesus delivering the Constitution (my goodness!) and Glenn Beck recommends Cleon Skousen, a Mormon who believed in a God-granted manifest destiny of America, and the idea of America's enemies being enemies of God himself. In the US, at what point does politics end and a substitute religion begin?
Yet another sphere where we would benefit from vigorous Jeffersonianism.
ReplyDelete...not to worship the founding fathers or anything, of course.
I've always liked our civic pantheon. I think it's good to have vision, ideals, and examples.
ReplyDeleteAnd good solid historical work that reminds us that those examples are only men is healthy too.
But you're right - some people can abuse that. Maybe it's because I grew up here with a civic pantheon that was reasonably respectable, but I'd rather have one than not have one. In America, because it is a specific collection of men, actions, and documents that we look up to, it's always about an idea. That, to me, seems much safer than other nations whose tribal tendancies get channelled into racial-claims, rather than claims about stated ideals.
Would you say this appeal to the Constitution also happens the other way round?
ReplyDeleteFor example, in the Progressive Era, didn't Teddy Roosevelt justify his activist policies on the grounds that they were what the Founding Fathers always wanted, but was lost track in the near past? I bring it up, because alot of international columnists have suddenly started discussing the Progressive Era in light of the recent financial crisis.
I reckon the Tea Party will find that two can play that game, as you say.
Grassroots movements have a certain arrogance, btw, whether they are conservative or progressive, because they regard themselves as "common man's opinion" going against the "elitist establishment". I think such movements are a little to be feared. I hear there was once a grassroot movement in the Progressive Era which wanted public school education, government guarantee of welfare, conservative Christian ideals, and sterilization of the disabled.
That was the Ku Klax Klan.
Prateek -
ReplyDeleteI think it all depends on how you do it. There were some progressive era ideas that were definitely and explicitly advocated by some founding fathers. I don't think there's anything wrong with taking heart in that. Many, many more founders would probably have embraced the progressive movement if they were around at that time.
What I have a problem with is people who say "such and such is a repudiation of the founders", or "so and so doesn't care about the founders", etc. I don't have a problem with libertarians noting that some founders would agree with them or that their views are consistent with many of our founding principles. They are. What I have a problem with is libertarian suggestions that other views somehow violate founding principles, and it especially bothers me when they act like the Constitution says something it doesn't. I think the Constitution can accomodate a libertarian set of policies. I don't think it mandates it. The same goes with progressives. If a progressive says "the founding fathers would want what we want and not want what you want, and not constitutionally allow what you want", I would definitely have a problem with that. I see much fewer progressives saying that than Tea Partiers saying that, though (particularly the last point about the constitution).
And of course, there can be fights over specific founders. I think the libertarianism of Jefferson is vastly overstated, for example (it wasn't 100 years ago, when Jefferson was associated with the more liberal groups you mention). That's a historical question, ultimately - but it's on firmer ground than arguing about "what the founders wanted" collectively.
I agree on the arrogance of mass movements...
ReplyDelete... if I had a nickel for every millionaire TV personality, politician, or businessman that called me an elitist in the last two years I'd be rich.