Constitution Bashers’ Internet Fallacy

by Chidem Kurdas

There’s a ferocious backlash against the Tea Party’s reverence for the U.S. Constitution. Court decisions against ObamaCare’s compulsory health insurance provision have further stoked the hostility.

One common and obvious line of attack is that the Constitution is old-fashioned and out of synch with our world of satellites and Twitter.

To take one example, Elizabeth Drew suggests that “The opening weeks of the new Congress, in particular the newly elected Republican House, had a somewhat comic aspect”  in part because the Constitution was read aloud.  I’m not sure why reading the Constitution is considered comical, but I suppose this is because the document is seen as fuddy-duddy.

“But the difficulty with the ‘originalist’ view that the Constitution should be applied as the Founders would have applied it (though in 1787 there were no airplanes or Internet) is that it can’t work,” writes Ms. Drew.

Ironically, this type of sneer is itself old—allegations that the Constitution is quaint go back to the progressive movement and the early 20th century.  Damon Root in Reason has a great quote. In 1935, when the Supreme Court cited the commerce clause in declaring unconstitutional the National Industrial Recovery Act, President Franklin Delano Roosevelt argued it was absurd to reject the New Deal program on the basis of an ancient law.

“The country was in the horse-and-buggy age when that clause was written,” the President reportedly said.

This horse-and-buggy objection is a trick, a diversion—something one would expect from so cunning a politician as FDR. The Constitution is not about technology, it is about government. It specifies a structure that limits power by dividing it between the states and the federal government and between Congress, the President and the courts.

It was written by men who knew well from history that unchecked power becomes corrupting and repressive. That they did not email or tweet has no bearing whatsoever on the current relevance of the Constitution. Their recognition of the need to impose checks is timeless, because political power remains just as corrupting and repressive as it ever was.

Regarding the fundamental rules for the governance of the country, it does not matter whether people communicate by email or messenger pigeon. Technology changes; the issues of power and its concentration are the same.

Critics claim their dispute is with “originalists” rather than with the Constitution. Thus Jeffrey Rosen recently wrote that Justice Antonin Scalia and other conservatives in the Supreme Court are pragmatists who accept the post-New Deal regulatory state— “he is not proposing a return to segregation and powdered wigs” Mr. Rosen says of Justice Scalia. This leaves isolated Justice Clarence Thomas, an extreme “orginalist” likely to oppose the medical insurance mandate (according to Mr. Rosen).

Embedded in the original Constitution is the method for its own updating. Article V starts with “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution…” and describes the process of making changes. When we say Constitution, we usually mean the original text plus its amendments.

If constitutional challenges to mandatory medical insurance are sustained, its advocates have the option for trying for an amendment. But those who complain of constitutional obsolescence often have no interest in amending it. It’s much easier to twist the Constitution and brand as a “powdered wig” originalist anyone who wants to protect its integrity.

56 thoughts on “Constitution Bashers’ Internet Fallacy

  1. Bravo.

    The Constitution was designed to protect us against people who cannot see beyond their own immediate problems — real or imagined. It is a set of rules that functions, among other things, to keep the actions of government aligned to longer-run consequences and interests. This is one reason the day-to-day pundits can’t stand it.

  2. The concern about the Tea Party is that it reduces the Constitution to slogans and political theater, not that it embraces the Constitution too much! It’s not the Constitution that we find disconcerting.

    It’s not surprising the Tea Party runs up against the bulk of constitutional jurisprudence. The Constitution is a republican document and a classical liberal document, but it is hardly a libertarian document. But if you have concerns about the enumerated powers and the necessary and proper clause’s function in executing the enumerated powers – as you say, we have an amendment process that you and the Tea Party can work through.

  3. Usually you hear the technology argument made in a much different way than you are presenting it here. The arguments usually go:

    “There was no wire-tapping in 1787, but we have to consider government power and wiretaps in light of what the Constitution did have to say about surveillance” or

    “there was no sense of clean air as part of the ‘general welfare’ in 1787, but we have to consider government power to appropriate for clean air in light of what the Constitution did have to say about appropriating money for the general welfare”, or even

    “there were no airplanes in 1787, but we have to consider government power to have an airforce in light of what the Constitution did have to say about providing for a common defense”.

    You seem to be turning the technology argument on its head based on a single snide remark by Roosevelt (the meaning of which isn’t entirely clear to me). What Drew seems to be saying – and the version of the point I’ve always heard and made – is that originalism fails adhere to the Constitution’s understanding of the role of representative government because it gets caught up on questions of what life and understandings were like in 1787 instead of focusing on the more important point of what the Constitution laid down as the appropriate relation between government and the governed.

  4. Human nature does not change with changing times and changing technologies. There is no such thing as an “out of date” constitution unless its authors were silly enough to include details about the production of buggy whips. When it comes to general rules about governance, the U.S. Constitution is as relevant now as ever. Aristotle’s thoughts on government are no more out of date than are his ideas on literature. Feel free to disagree with the Constitution, or even be honest and call for its replacement, but don’t make ridiculous claims like changing technology matters for its relevance.

  5. John Stuart Mill once observed:

    “Every kind and degree of evil of which man is susceptible may be inflicted on them by their government.”

    That is the purpose of a power-constraining, and power-dividing constitution. If not to prevent, as least to limit the frequency and the magnitude of such “evil” from government.

    And this is never out-of-date.

    Richard Ebeling

  6. Human nature may not change, if by that term you mean the typical biological endowment humans share, but human cultures certainly do change at a pace relevant to constitutional durability. I can imagine a constitution becoming out of date because of cultural change.

    The U.S. Constitution has a mechanism for amendment, and without that mechanism it would surely be out of date (for example, since it would still count fractions of some people as relevant for apportionment and allow states to deprive large classes of adults of the ability to participate in politics). So it is easily imaginable that there could be such a thing as an “out of date” constitution, and the question is whether or not the constitution we have qualifies as “out of date.”

    I’m not arguing that the U.S. Constitution IS out of date. I’m rather fond of it and so far tend to believe we’re much better amending it from time to time rather than starting over. I’m just arguing there is nothing in principle wrong with the idea that a constitution could be out of date.

  7. Let us be frank. What many (most?) critics of the “tradition” interpretation of the Constitution are objecting to are the restrictions and restraints that it places on the Congress and the president to do whatever they want on the basis of voting interests that are able to elect people to political office.

    They want to force people to fund government-mandated health insurance; have the government tell (and finally “command”) people how they should eat and exercise; tell what modes of transportation they may use, and powered by what source of energy; regulate private industry and redistribute wealth in any way floating ideological fancy makes attractive at any moment in time. The list can do on-and-on.

    The real issue is not an “out-dated” constitution. The issue is whether or not it is “out-dated” to consider that individuals have a variety of rights to live their lives (peacefully) as they personally desire, and interact (peacefully and honestly) with others on any basis and terms they find mutually attractive and advantageous.

    Or, whether voting majorities and voting coalitions of minority special interest groups that make up majorities on voting day, may elect people to political office who are then to impose whatever they want and desire on others in society who wish not to follow or live by the “preferences” of those winning voting groups.

    The basic issue is still the one clearly expressed by Benjamin Constant in his famous 1819 lecture at the University of Paris on, “The Liberty of the Ancients Compared with that of Moderns.”

    Shall we return to the conception of freedom of the ancient Greeks, that liberty is the right to participate in political deliberation and voting; but once the vote is taken every individual is then a slave to the will of that majority decision?

    Or do we attempt to preserve the more “modern” classical liberal conception of liberty that it means the right of each individual to freely live his life as he chooses, alone or in peaceful association with others, using (or even abusing) his life and property as he finds most advantageous to give meaning, and value, and improvement to his personal existence as he finds it more desirable. And government is relegated to a relatively small corner of human society, to protect each person in these private and voluntary interpersonal affairs.

    Which of these two do we want to be the “outmoded” conception of liberty? Because the answer to that defines which constitutional order is relevant or out-of date.

    Richard Ebeling

  8. Another excellent post by Chidem.

    The Constitution is medieval in conception. intended to ensure divided powers. What people hate about it is exactly what it was designed to be: “old fashioned,” and an obstacle to change.

    Liberty has been lost because Congress is excessively deferential to the Executive branch, and has delegated far too many of its powers. Monetary policy belongs to Congress, but has fallen de facto under the Executive branch.

  9. I enjoyed the post.

    ‘What people hate about it is exactly what it was designed to be: “old fashioned,” and an obstacle to change.’

    Many of the people I know don’t make it that far. They see the Constitution more like a set of Nostradamus quatrains, left to be interpreted however those in power see fit.

    They look at me strangely when I ask them why the founders would have included Article V if that were the case.

  10. In a similar way it is asserted that every new synthetic chemical or exotic substance requires a new law or regulation because those who made the law had never considered the development of such things.

    But tort law and legal precendent concerns itself with damage and responsibility in the abstract. So old law can cover new things.

    In a libertarian world novel produce may require new methods of handling, storage and transportation so as to take resonable care to prevent harm to others. But the legislature, picked from the adult citizenry by lot, need do nothing but continue to meet at five yearly intervals to parade and dine and, before dispersing, to drink a toast to the constitution and to common law.

  11. I find the discussion of originalism rather lacking. The major battles fought by originalists are not on the “structure of government” front. Rather, they focus their energies on evaluative clauses and make the argument that these provisions should be locked in stone. The irony, of course, is that evaluations can be made either up-stream (by the law’s creator) or down-stream (by the law-applier). Statutory provisions using evaluative terms such as “reasonable” or “good faith” leave the evaluation to be made down-stream by the law-applier. One would think the same of the provisions in the Constitution (“unreasonable search and seizures,” “cruel and unusual punishment,” etc.). Originalism is motivated by a distrust of law-appliers despite the fact that the law-creators specifically provided for evaluation to be made down-stream. If originalists are concerned about institutional structure, and much of their arguments appeal to the (supposed) theoretical authority of the constitution-creators, perhaps they should re-think their position vis-a-vis constitutional provisions calling for down-stream evaluation.

  12. Well said, Hume.

    The problem with originalism is that it doesn’t live up to its name. As long as Chidem and others interpret that perspective as “Constitution bashing”, they’re just going to be running around in circles.

  13. A good part of my doctoral thesis argues that originalism is not even a possible position (except as rhetoric), for several reasons, one being the vagueness of terms like “reasonable” and “necessary,” another being the contradictory intentions of the drafters themselves on many points (resulting in vague language to cover over the differences), the inability to foresee what would come up (e.g. the election of 1800), etc.

  14. Gene, surely a purposse of textual exigesus (the “hermeneutic turn”), is to determine what the words mean in the document.

    What were the debating and arguing points in the Constitutional Convention, as recorded by James Madison, and how did the participants use words and explain what they meant in the discusssions?

    In the final document, and in the context of the debates and agreements, what were these words taken to mean? And what meanings did the examined words generally and specifically mean in ordinary discourse as a intepretive guide and used in the Constitution.

    Yes, there may (and most likely) remain ambiguities and possible interpretive disagreements. But . . . nonetheless, the range of disagreement and dispute can be narrowed.

    For example, when the Constitution says, “Cruel and unusual punishment,” surely the historian can investigate how the words were usually used n the context of what types of punishments were inflicted, and the arguments people were making about which ones were “usual” and which were being taken to be viewed as “unusual,” so as to provide a reasonably confident interpretation.

    I am not saying there won’t be, and often are, interpretive disputes and disagreements.

    But in many instances I think a a fairly reasonable and confident judgment can be made about a lot of what the “Founding Fathers” meant in the words of the Constitution.

    Surely we do not want to take the stance of linguistic nihilism?

    It would make all forms of discourse a bit difficult.

    Richard Ebeling

  15. “Surely we do not want to take the stance of linguistic nihilism?”

    This is somewhat besides the point. Laws, including foundational laws, are norms that necessarily reflect evaluative judgments. These judgments can take place upstream or downstream. By using terms like “reasonable” or “cruel,” the norm-creators are providing that certain evaluations take place downstream. So if the originalist’s claim is that the drafters of the constitution deserve respect because of their expertise (theoretical authority), an argument is needed why these originalists do not afford respect to the drafters’ judgment that these evaluations take place downstream.

  16. “In the final document, and in the context of the debates and agreements, what were these words taken to mean?”

    Well, there was often no single thing they were taken to mean. The Hamiltonians took them to mean the US would be a industrial-mercantilist nation, the Jeffersonians an agrarian one. And the Bill of Rights is even worse: it was drawn up hastily and hardly debated at all. Why is the Second Amendment worded so oddly? Because no one bothered to make it unambiguous.

    This is what the historical investigation you recommend demonstrates: there often (not always!) was no sinlge, original intent to get back to.

  17. I see a lot of criticism of “originalists” in the comments. But Chidem seems to have used the word to identify a view that is by definition too simple or otherwise bad. Some of the people who dismiss the Constitution as old fashioned seem to think that the only other view is that of dumb “originalists” who don’t seem to understand that words such as “reasonable” are ambiguous. Chidem is objecting to that equation and pointing out that there are not-so-easily-dismissed defenses of the Constitution out there, ones that limit the interpretation of the document more that these critics might like.

    If we all agree to turn up our noses at supposed “originalists,” we still have to consider whether the document is just a dusty old piece of paper or something from which we should be taking more cues. I’m with Chidem in wishing we would take the Constitution more seriously.

  18. “whether the document is just a dusty old piece of paper or something from which we should be taking more cues.”

    I agree that this is the direction the debate should take. The problem with Chidem (apparently) defending its use by Tea Partiers is that their use is decidedly not of this nature. Rather, they use it as rhetorical device and appeal to it as an authoritative document. One often senses the view that the document shall be regarded as a practical authority (over and above a theoretical authority) that possesses content-independent moral force. Of course, politicians take an oath to uphold the constitution, etc., so it is politically irrational to engage in a debate regarding the merits of constitutional provisions. That being said, we do not need to support the politicians’ ideological use of the document as an unquestioned authority. So I agree that we should engage the ideas embedded within the original constitutional framework, but I disagree strenuously with the notion that this framework somehow possesses authority of any kind.

  19. Daniel K,

    You are using the phrase “constitutional jurisprudence,” which is similar to something you wrote or claimed in an earlier post that is still not quite understood by me. What is the distinction between “jurisprudence” and “constitutional jurisprudence”? Why the need for “constitutional” to qualify at all? I get a sense from this that it would be impossible, or nearly impossible, to find ANY thing that Congress or the President or other officials do that would be UNconstitutional. Am I right? Are there any examples of some government action or legislation or “jurisprudence” (I’m not a political scientist so I don’t know how to collect these things under the appropriate singular rubric) that have been UNconstitutional? Would you ever or have you ever brought up the Constitution to say that something proposed is not allowed or wrong?

  20. Roger – it is Chidem that calls non-originalists “Constitution bashers”. Who is turning up their nose at whom?

    Seth – when we want to change the Constitution, of course. For example, many don’t think government should appropriate money to spend on the general welfare. Instead of reinventing the meaning of the Constitution they ought to amend it.

    Daniel – I’m no lawyer and may be using “jurisprudence” improperly, but I would just imagine that there are a lot of legal questions that don’t speak to constitutional concerns. You’ve raised this point before – I don’t know why you think anything the Congress or the President wants to do would be considered unconstitutional. You’ve raised this point in the past – why do you say this? Article 1, section 8 places clear limits on the power of Congress.

  21. “Roger – it is Chidem that calls non-originalists ‘Constitution bashers’. Who is turning up their nose at whom?”

    Chidem calls constitution bashers “constitution bashers” he (she?) doesn’t apply that label to all non-originalists. The original post criticises a mode of criticism of the constitution, it doesn’t explicitly approve of the originalist view.

  22. Daniel,

    2 responses: One, I read your first response to this post, and in particular the use of “Constitutional” jurisprudence, as a challenge to the a more restrictive – and what you seem to consider incorrect – reading of the Constitution that the Tea Partiers might support. I thought that you were being clever by saying that all jurisprudence is Constitutional, that Constitutional is not a specific set of beliefs about govt, &c.

    My second response: I am asking you if YOU have ever thought any legislation or other govt action unconstitutional? Is this even in the realm of possibility for you? I am used to hearing limited govt proponents refer to the Constitution to say that some proposed law or regulation should not be allowed, that it “unconstitutional.” Have you ever made reference to an Article or amendment of the Constitution to say that proposed legislation, for example, should not be allowed? Would you ever? I’m asking this because it seems difficult for me to understand how someone (like you, perhaps) views the Constitution and its significance in jurisprudence when it seems so fluid and nearly impossible to breach.

  23. The discussion is too abstract for my taste. To get a good sense of the mess made of the Constitution take a look at Richard Epstein, How the Progressives Rewrote the Constitution.

    If “Hume” is going to use that name he should sound like Le Bon David.

    The contemporary liberals have no problem finding legislation that affects social or civil liberties unconstitutional. However, they seem to think the Constitution gives the government a blank check when it comes to the economic sphere. This is just arbitrary and indefensible. It also shows the abysmal ignorance of Constitutional scholars and Supreme Court justices of public choice. James Madison, on the other hand, knew this very well.

  24. You may be right, Mario. I imagine, however, that what seems to you or me like varying degrees of adherence depending on the desired outcome is justified for those who might do this in some well-intentioned way. It’s hard at the end of the day, however, not to see in it more than a little short-sightedness.

  25. Of course it’s a realm of possibility, Daniel. Special favors, special benefits certainly don’t fall under the first enumerated power that libertarians like to pretend doesn’t exist. Farm subsidies, in my view, probably don’t pass constitutional muster. My understanding of the Constitution is fairly mainstream, though, so there isn’t a mountain of examples the way there would be if I conceived of the Constitution as being narrower than it actually is. There aren’t these examples because generally speaking Constitutional boundaries have not been transcended.

    In the past I’ve suggested the individual mandate strains the necessary and proper clause practically to its breaking point. I have doubts about the constitutionality of that provision, but the point is it’s not something that one person decides.

  26. “One often senses the view that the document shall be regarded as a practical authority (over and above a theoretical authority) that possesses content-independent moral force.”

    That’s a stretch.

    I get the sense that people simply want to know what the rules are and the process to go about for changing those rules to prevent our elected representatives from becoming our arbitrary rulers. That seems pretty reasonable to me.

  27. “I get the sense that people simply want to know what the rules are and the process to go about for changing those rules to prevent our elected representatives from becoming our arbitrary rulers.”

    I can appreciate this sentiment. From a legal positivist perspective, however, and unfortunately for originalists, the legal landscape does not support any such claim. What the rules “are” is simply found in Supreme Court precedent, the convergence of beliefs of government officials, etc. It is implausible to say that “the law” actually is the original meaning of the Constitution. From a positivist perspective, this is nonsense. The law in the United States is not what originalists claim. Rather, what originalists claim is what the law ought to be. So a desire to use original meaning would actually bring about a change in constitutional law.

    Professor Rizzo, out of curiosity, where does the Humean find fault with my argument? I claim that the originalist arguments which appeal to the theoretical (and at times practical) authority of the drafters of the constitution are disingenuous because they fail to take seriously the drafters’ judgment that certain evaluations take place downstream by the norm-appliers. Where would David Hume disagree? I think he would reject the reverential status that Tea Partiers give to the individuals that drafted the constitution.

    “It also shows the abysmal ignorance of Constitutional scholars and Supreme Court justices of public choice. James Madison, on the other hand, knew this very well.”

    I will defer to you on public choice theory, but I always thought that Madison (early Madison at least) was entirely ignorant of public choice. This probably reflects my own ignorance, so this section of the post is more for my own edification. I was under the impression that Madison argued that a larger territory and larger electorate made it less likely that govt bureaucracy would fall under the influence of special interest. For example, in Federalist 10 he writes:

    “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”

    Again, I am not claiming expertise on public choice, or expertise in interpretation of Madison. I just thought he missed public choice in arguing that expanding govt is the antidote to faction and special interest.

  28. I’m surprised that Autrian economists haven’t come up with a Hayekian solution to this. One has to respect and abide by tradition — the Constitution, as written, as intended (and as amended — keeping in mind that if you want to do something the Constitution clearly does not allow, you are supposed to amend it, not ignore it, which is illegal) — while adapting on the margins, with the tradition always firmly in mind.

    Sorry, but the 9th and 10th amendments make it clear that any powers not explicitly given to the federal government are not to be held by the federal government at all, but by the people (note that “people” is first in the 10th amendment) and the states, respectively.

    Words mean things. It’s not a postmodernist free-for-all.

  29. Troy – traditionally the disputes are over interpretations of Article 1, not the eighth and ninth amendment. I don’t know anyone that disputes the idea that rights not stated are reserved to the people and the states (the 14th clouds the picture a little of course).

    I’ve seen this “words mean things” line come up several times now, and I’m not sure why you (and Daniel and others) act like this is some sort of point in your favor. The alternative argument is not that we get to make up what’s in the Constitution – it’s that word’s mean something and originalists ignore the plain meaning of the words. Why do you take “disagreeing with Troy” to mean “postmodernist free for all”?

  30. That’s your interpretation, Daniel, and not a very mature one, at that. Try reading in context.

    There are plenty of things in the Constitution I disagree with, but that I’m not going to bend with a postmodernist reading that allows words to mean “exactly what I want it to mean, no more, no less,” as the postmodernists insist. Words DO mean things. They don’t get to mean whatever you want them to so that you can get whatever reading you want. Which is clearly what you want. It is of course easier than actually following the law of the land and making changes according to the way the Constitution allows.

    On the other hand, your argument seems to be that whatever you happen to disagree with is unconstitutional, but all the rest our government does is clearly constitutional. Project much?

    But you are right — nobody debates the 9th and 10th (the two I was talking about) amendments. They just ignore them completely, pretending they are not there.

  31. Troy –
    It’s fine that you and I disagree on the plain meaning, and I’m not immature for it. I don’t think you’re a postmodernist because you’re wrong – I just think you’re wrong. I find it odd that so many on your side think that because we’re wrong we’re also loosey-goosey with language.

    re: “They don’t get to mean whatever you want them to so that you can get whatever reading you want. Which is clearly what you want.”

    That’s the last thing I want. The Constitution provides no constraint on federal power and no structure to American governance if you can get whatever reading you want out of it.

  32. Your last statement is immature. That’s what I was refering to. I did not say you said I was a postmodernist. I said that those who essentially argue that words can mean whatever they want them to mean, so the Constitution means whatever they want it to mean are postmodernists. They do violence to all sorts of texts, not just law.

    The ones who are wrong have typically used loosy-goosy language. Thus the accusation.

    You can make no argument from the Constitution that allows for government bailouts for companies any more than it allows for farm subsidies.

  33. Troy – you suggested that I interpret the Constitution to mean whatever I want to mean, and since I clearly don’t all I can conclude is that you just don’t like how I (and most others) have interpreted the plain words. There’s nothing immature about how I connected the dots there. I know better than to call you a post-modernist, but given the standards that you’ve set up for it you seem as much a post-modernist as I do.

    On bailouts – it’s hard to get enthusiastic about them, but certainly the systemic benefits of the bailout qualify it as a potential promotion of the general welfare in a way that farm subsidies simply aren’t. Moreover, regulation of commerce between the states has long been interpreted to encompasses the ensuring the regularity of the channels of commerce, and attempts to maintain credit markets certainly seems to fall under this. In light of these obviously constitutional reasons for bank bailouts, and the limited time with which to respond, direct provision of funds could easily be justified as a necessary and a proper action for implementing policy. None of these elements are present with agricultural subsidies (although perhaps these were more systemic and plausibly Constitutional in the 20s and 30s).

    It doesn’t mean bailouts are wise policy (that which is permissible is not always advisable), and it doesn’t mean we won’t deliberate over whether the methods are actually necessary and proper (that’s what legislatures and courts are for – to deliberate these disagreements), but it seems obvious that there’s Constitutional justification.

    I don’t want to continue to crowd this blog – feel free to respond if you want, but I’m moving these last comments over to my blog so we don’t choke the discussion going on here.

  34. “What the rules “are” is simply found in Supreme Court precedent, the convergence of beliefs of government officials, etc.”

    Now you sound like Jeremy Bentham.

  35. “Now you sound like Jeremy Bentham.”

    I can agree with that (although I was getting at more of a Hartian rule of recognition, not so much the declarations of a sovereign [aside: I think the differences between the two are overblown]).

  36. DK,

    I guess I see where you’re coming from now. I’m uncomfortable with the sort of “it’s all good” attitude that is implied however. This is not the Constitutional system that I would like to live under, I don’t think. And this relationship to a document written with such care makes me cringe at e prospect of how someone someday may read or understand anything I’ve written with great deliberation.

    Fun discussion, though.

    Take care,

  37. Okay, Daniel.

    I don’t want to misrepresent you. You made it clear that generally speaking Constitutional boundaries haven’t been transcended, but there a few instances where it might have been. I added my own gloss to your statement when I said “all good,” sort of turning your position into a banal undergrad grunt of approval. It was a caricature of your position, an exaggeration and distortion that collected your position with something that I anticipated you would not WANT to be associated with. Apologies if I offended.


  38. No offense was taken, Daniel! It just seemed like it would be awfully pointless to walk away as if that was still the difference here, you know?

  39. Re Daniel Kuehn, 1st comment: “The concern about the Tea Party is that it reduces the Constitution to slogans and political theater, not that it embraces the Constitution too much!”
    The Tea Party is a grass roots movement that contains many groups. Some of these may go for political theater– I don’t see any harm in people dressing up in 18th century garb, it’s rather cute. Regardless of whatever theater or slogans, there remains the founding principle of a limited federal government subject to checks and balances.

  40. Richard Ebeling–
    “What many (most?) critics of the “tradition” interpretation of the Constitution are objecting to are the restrictions and restraints that it places on the Congress and the president to do whatever they want on the basis of voting interests that are able to elect people to political office.”
    Well said. That is the key issue. But of course many critics pretend there are other issues, not that they want to do whatever they want–if someone wants to impose on the rest of society, they know they have a better chance if they present that project as Constitutional.

  41. Jerry O’Driscoll– Re “Monetary policy belongs to Congress, but has fallen de facto under the Executive branch.”
    This is a major issue that I have not seen addressed much.

  42. Mario Rizzo–
    Re Richard Epstein’s book, thanks for providing the link. I thought of it as I was writing the post but regrettably did not have opportunity at the time to consult it.

  43. chidemkurdas –
    I’m not complaining about the 18th century garb. I lived across the street from Colonial Williamsburg for four years – I’m quite fond of it myself. You seem quite confident that Tea Partiers for the most part value the Constitution. I’m not entirely convinced of this, and I see a lot of theater (like reading it allowed in Congress or paying passionate lip service to it) that on its own is fine but doesn’t demonstrate much dedication to the text in and of itself. The Tea Partiers largely strike me as a group of people with an odd mix of populist and libertarian tendencies that would like to think the Constitution says what they want it to say but don’t care too much for thinking about the document itself.

  44. The Tea Party is a grass roots movement. Some variation is to be expected among the large number of people who constitute it–it would be a great surprise if there weren’t differences in focus or priority. I would think that no one person really speaks for the movement as a whole.

    But the basic idea is of limited government. The Constitution sets the limits on what the federal government is and can do. You say Tea Partiers “would like to think the Constitution says what they want it to say” But that has been the “progressive” left-liberal project for the past century as the government has expanded to unimagined size and scope.

  45. “But the basic idea is of limited government.”

    I dont necessarily agree with this. It appears that the idea is limited government in certain domains. I see many Tea Partiers with the same enthusiasm for the military industrial complex, as well as cries for “States’ rights!” that are typical of neo-conservatism. So it looks like limit federal government in certain domains, expand it in others, and push forward with “States’ rights” rhetoric. In principle, New York state, New Jersey, Pennsylvania, etc, are threats to my autonomy and dignity as is the federal government. Sure, the cost of leaving the US is greater than leaving NY, but the cost of leaving NY is pretty high. This, coupled with the fact of RELATIVELY homogenous political outlooks by region (e.g., North East), the costs of moving states/regions are extremely high.

  46. “But the basic idea is of limited government.

    I would say the basic idea is small government. I think too often people who look favorably on the Tea Party conflate limited government with small government. The Constitution is a document that structures a limited government – limited to certain purposes and actions – but not necessarily one that is small. That is going to ebb and flow through history. What’s ironic about the Tea Party’s conflation of limited government with small government is that they’re rewriting the Constitution and denying the existence of basic rights of self-governance in the name of pursuing a smaller government. This is ironic because it’s the sort of thing that incited the revolution in the first place.

    If you read the complaints in the Declaration, they essentially are of two types:

    1. George III is doing things to us that he has no right to do, and (perhaps more numerous)

    2. George III is not allowing us to govern ourselves and do things that we have mutually agreed on in our own legislatures.

    The revolution was as much over a right to republican self-governance as it was over abusive overreach by the crown.

    The Tea Party is fond of proclaiming “No Taxation Without Representation”, but what they really advocate is “No Taxation, Regardless of What the People Want and Send Their Representatives to do”. The priority is small government, chidem, not limited government or self-government. Small government has its merits. While libertarians may perceive me as being a big-government guy, I’m really not relative to most of the public, I would guess. But it’s not the primary function of the Constitution.

    I think you’re approaching the Tea Party too uncritically, and you’re certainly being naive in identifying them with Constitutional fidelity.

  47. Daniel Kuehn–
    Re “too often people who look favorably on the Tea Party conflate limited government with small government.” A government restrained in scale and scope will be small relative to one that grows with no limit–as has indeed happened and we’re just starting to see its financial consequences.

    That said, constitutional limits are just as much about the balance of powers, which does not necessarily translate to a percentage of GDP accounted for by government activity. For instance the well-documented increase in federal powers against the states has created an imbalance. If you understand the need for limited government, all these issues come to play.

  48. A bait and switch is employed in what I would call constitutional shyster lawyerism — picking at and prying apart the Constitution for the purpose of defeating inconvenient restrictions, in much the manner of any shyster lawyer employed to dispose of an inconvenient contract or marriage. The bait and switch is to focus attention on what can be a legitimate difficulty of determining with absolute precision the intentions of the authors with respect to situations and technology that they could not have been expected to foresee — while the actual object is to flout and overturn Constitutional limitations on federal power about which there can be no reasonable doubt. The Constitution clearly provides only a limited role for the feds though enumeration of powers, all else reserved to the states. For anyone who didn’t get the message, the first Congress was kind enough to add the 10th Amendment. Madison, who was at the very heart of the drafting of the original Constitution AND the first 10 amendments, understood as president that there was no federal power to build a national highway that he thought was a good idea. He favored an amendment, in the absence of which he vetoed the bill. Later the highway was build without an amendment, and we were well on our way to the present situation in which the federal government is operating flagrantly outside its Constitution constraints. Perhaps the people and the courts have awakened sufficiently to draw a line at Obamacare.

  49. The 10th Amendment referred to by Allan Walstad says the powers not given to the Federal government by the Constitution are reserved to the states or the people. Many federal activities are almost certainly in violation of this Amendment, as Mr. Walstad points out.

    The exact text is: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

  50. And in Article I, Section 8, there are only 18 specific powers given to Congress. They are not at all open-ended.

    There is, for instance, no provision for a federal criminal code. Congress has one specific criminal power within the United States: counterfeiting. It also has the power “To define and punish Piracies and Felonies committed on the High Seas, and offenses against the Law of Nations.”

    Criminal law was a matter for the states.

  51. That “Piracies and Felonies committed on the High Seas” is also as much of an issue now as it was in the 18th century. Somali pirates killed four Americans just a couple of weeks ago.

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