How Many Divisions Does the Constitution Have?
As the dreaded Commerce Clause rears its head once more, cynical observers outside the legal clerisy might wonder why so much ink is spilled over Constitutional law. From where we sit, there are three questions:
- Is it good or bad for the federal government to mandate the purchase of health insurance?
- Does the Constitution (as interpreted through the lens of US constitutional law) permit the federal government to mandate the purchase of health insurance?
- Are there enough votes on the Supreme Court to squash the insurance mandate?
However strongly I might feel about question one, and about the exercise of federal power in general, I'm jaded enough to realize that my opinion is irrelevant to the outcome of the debate in the short term. Question three will determine the matter. But ninety percent of the public conversation falls under question two, whether it's the law school professor speculating on the radio show or the conservative protester waving his pocket copy of the Constitution.
The Constitution, like Robert's Rules of Order, provides a focal point and a procedural path for the allocation of governmental powers. It's undoubtedly served, like any set of conventions, as a stabilizing force. But I can't help thinking that by getting interested in historical interpretations of the Commerce Clause, etc., I'm laying a veneer of historical, intellectual, and moral legitimacy over what really is an exercise in pure politics.
Aside from the fact that its inherently interesting, why should I care what the Constitution actually says about the allocation of political power if the magic of the Commerce Clause (or the War on Terror, or whatever) means that Congress, the President, and the Supreme Court can agree to ignore any constraints on federal action? I'm open to convincing.
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Re: How Many Divisions Does the Constitution Have?
Why should you care what the Constitution says? Matt, Matt, Matt. Tell me, fast, I beg you, that you're only asking that question to provoke the likes of me (and Richard Epstein and John Yoo). Because the answer, of course, is that you should care whether we remain a nation of laws and not of men.
Re: How Many Divisions Does the Constitution Have?
Peter,
Yes, take it as a provocation. I'm trying to think through how I, as a layman, should regard con law once it appears to no longer constrain governmental power. Is it a procedural formality? A rhetorical tool? An alternative, aspirational system of government that citizenship demands we maintain along with the "real" one?
Jun '10
Re: How Many Divisions Does the Constitution Have?
If needing occasional healthcare (i.e. being alive) means that the government can force me to buy something that I wouldn't otherwise buy--health insurance--then there's really nothing they can't force me to buy. I'm forced to buy auto insurance, but I can quit driving and escape the requirement. The only healthcare escape is a very final one.
May '10
Re: How Many Divisions Does the Constitution Have?
Aside from the fact that its inherently interesting, why should I care what the Constitution actually says about the allocation of political power if the magic of the Commerce Clause (or the War on Terror, or whatever) means that Congress, the President, and the Supreme Court can agree to ignore any constraints on federal action? I'm open to convincing. ·
It sounds like a lost cause; Congress won't self-immolate like Landru. I guess your best bet is to try to convince the voters to replace Congress and the President with people who follow your interpretation of allowable constitutional authority.
Re: How Many Divisions Does the Constitution Have?
Many smart folks spread across the right of center say "Hey, I'm against big, wasteful, meddling, micromanaging, administrative despotism, but not because I'm a kooky Jeffersonian. I'm a Hamiltonian! Constitutional government is strong, robust, effective, smart, policy-driven government, lean, mean, and modern." Yet from our standpoint it sure looks like Hamilton was too blind to the ways in which his preferred approach to Constitutional government could be leveraged so dramatically into the kind of sprawling beast we have today.
The quest to pin the blame on the donkey continues. Some finger Wilsonian progressives. Some paleos knock Lincoln. But even before Lincoln, there were powerful Whig trends pushing toward the kind of government we started to see in earnest under Grant. But, as you say, Matt -- now what?
Jul '10
Re: How Many Divisions Does the Constitution Have?
Matt Frost: Peter,
Yes, take it as a provocation. I'm trying to think through how I, as a layman, should regard con law once it appears to no longer constrain governmental power. Is it a procedural formality?
Are there enough votes on the Supreme Court to squash the insurance mandate?
How should you view it? I think it was best put when someone said,
No Animal shall sleep in a BED!
with sheets
No Animal Shall Kill another animal!
Without Cause
No Animal Shall Drink Alcahol!
To Excess
Because that it the genuine extent of its meaning when judges break thier oath and don't uphold the Constitution as they solemnly swore to do.
As for enough votes on the Supreme Court... There were enough votes in Missouri
Aug '10
Re: How Many Divisions Does the Constitution Have?
As you so rightly observe, reliance is illogical. The "Commerce Clause" was never intended as a basis for the expansion of power by either branch. Nor are there magical powers inherent in the "General Welfare Clause" (relied upon to support federal expenditures that drive our oppressive federal tax scheme), nor the "Good and Plenty Clause" (whatever that is, Mr. Conyers).
These are all linguistic gymnastics employed by 5 or more Supreme Court Justices when asked to opine on certain legislation and used solely to find some justification (any justification) for a desired ideological result. Hence, the left dissembles, "It's a living, breathing Constitution"; or, stated differently, “Screw the Constitution – there are no constraints.” See, e.g., Rep. Pete Stark.
So, why should you care? The abundance of leftist ideological Supreme Court appointees has perverted the Court’s self-appointed role as "Constitutional interpreter". If you care about preserving our Republic, the only hope for checking the growth of federal power is to take back Congress and the White House, have some "intestinal fortitude (I'm looking at you, G.H.W. Bush), and appoint strict constructionalists, such as Thomas, Roberts and Scalia.
Re: How Many Divisions Does the Constitution Have?
The realist speaks. And to an extent, Matt, you have a point. If all the branches of government acquiesce in the same wrong interpretation, the system of separation of powers and of checks and balances fails. But that is not the end of the matter. The question of rehabilitating the lost constitution depends in large measure on persuading one or another groups that the current synthesis is unsound as a matter of principle. That is needed to motivate any examination of basic structures. Once that is done, the more textual and historical arguments add legitimacy to the cause. How do we know this is true? Because of the enormous intellectual efforts on all sides to win the battle of legitimacy on matters of text. If the cynic were right, those in power would not bother with the pesky outsiders. And boy, do they.
Re: How Many Divisions Does the Constitution Have?
The Constitution still matters, Matt. Why else do both political parties fight so hard to appoint their choice of candidates to the Supreme Court and the lower courts? It's not for the patronage dollars, that's for sure (just mention the word salary within 100 feet of a federal judge, and you will be treated to a harangue about their lost wages in the private sector).
Reagan identified an important dynamic at work with appointments. Even if the Court and the political branches have a consensus, but mistaken view of the Constitution and the powers of government, an alternative view of the Constitution can make progress -- ultimately a President can campaign on it, and if he wins he can appoint judges to the courts who will enforce it. Much of the Reagan revolution was built on such ideas. Richard, for example, single-handedly brought back the Takings Clause from the dead and the Court today has rendered several decisions protecting private property that would have be unimaginable before Reagan (though I am sure Richard would prefer that the Court go even further). The same is true of federalism and the separation of powers and, most significantly, criminal procedure.
Aug '10
Re: How Many Divisions Does the Constitution Have?
Dr. Epstein – Forgive me, but I do not understand what you meant when you said "rehabilitating the lost constitution depends in large measure on persuading one or another groups that the current synthesis is unsound as a matter of principle."
What are the "groups" to which you refer? Do you mean individuals of like political mind, such as liberals and conservatives? Or do you mean ethnic groups? Or do you mean generational groups?
The persuasion to which you refer, do you meaning forcible persuasion, such as gaining political power and enforcing a different synthesis? Or do you mean rhetorical persuasion, meaning logical instruction that would lead reasonable others to the same conclusion? If so, how might one do so?
The principle to which you refer, do you mean “principle” as in a principle of legal construction? Or do you mean “unsound as a matter of principle”, meaning “inconsistent with the concept of limited federal powers”?
Jul '10
Re: How Many Divisions Does the Constitution Have?
Q: How many divisions does the Constitution have?
A: Technically, all of them.
Re: How Many Divisions Does the Constitution Have?
Thanks so much, gentlemen. If nothing else, I'm hospitable to the need for a limiting principle.