Tuesday, July 3, 2012

An odd point from Randy Barnett

So I'm listening to Randy Barnett on the ruling on C-Span, and he keeps making this very odd point. He's making the argument I'm sure you all have heard that while the court came down in favor of Obama care, a majority supported a more conservative view of the commerce clause. Fair enough. But in explaining this Barnett says that there was a five to four majority on his side, in favor of a "limited and enumerated powers" view of the Constitution.


What exactly does Barnett think the other four think of the Constitution? What about the rest of us?

Is he under the impression that we thought the Constitution was about "unlimited and unstated powers"????

It can be very strange sometimes to see how this community distinguishes itself from others.


  1. It's funny, I don't even know who this guy is. In either case, I can attempt to rationalize what he is possibly saying.

    Ok, you've got the commerce clause angle, which was struck down. However, the other aspect was the taxation authority angle, which was strangely upheld. Well, in my opinion, the way that the taxation authority was interpreted, you can now tax the people for any non-action as dictated by the state, thus there are no limits to power, nor does the action dictated have to be something enumerated to the Congress (remember, the action in question was struck down as a power not enumerated).

    So, basically they can tax you for non-action, but they cannot force you into action, or another way of saying it is that they don't have the authority to make you murder your first born child, but they can tax you for failure to do so.

    Does that help?

  2. No. He thinks the liberal Justices don't think the Constitution provides for strict structural limits on Congressional authority and that they instead believe that Congress is granted broad authority to enact necessary and proper laws rationally related to Constitutionally enumerated objectives. In other words, one side says that the Commerce clause is a description of means available to Congress while the other side says the Commerce clause is a description of the goals that Congress can pursue more or less however it wants.

    You just don't have the proper context. If you read Constitutional scholars, you'll rapidly realize that "limited and enumerated powers" is shorthand for a whole legal philosophy rather than a complete description of that philosophy.

  3. http://www.volokh.com/2012/07/06/the-repudiation-of-the-national-problems-clause-a-counterfactual-way-of-appreciating-what-we-gained-in-the-lawsuit/


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