So, what IS the limit?

[badlydrawnjeff.livejournal.com]

Radley Balko's a libertarian, yes - writes for Reason, has his blog, etc. He's also done great work on drug policy, and may have single-handedly gotten someone a retrial for a botched murder case.

Anyway, he posted this question on his blog tonight in response to the left wing responses to the health care reform lawsuit result yesterday, and I'm sharing it here because I am curious:

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits.

...

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?

...

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution?

I use my Tenther icon ironically right now, but I think it is a reasonable, rational question. I can get why people view the General Welfare clause expansively, even if they're wrong, for example, but I can't wrap my head around how people cannot see this as overly broad, or why anyone's really willing to dismiss certain Constitutional facts out of hand. I'm actually really curious here - if there's something I've been missing all this time, I'd genuinely love to hear it.

Comments

[underlankers.livejournal.com]

Bah, my guess is that Right Wingers will defend with a knee-jerk reaction the Bush Administration overriding California's desires for stricter auto emissions from the national standard and object to defying the 10th Amendment for legal pot but be absolutely mum about the consistency with that and using the 10th to avoid enforcing laws that help people.

The 10th Amendment, like the 4th these days is one only used by the side out of power to criticize the one in.

[prader.livejournal.com]

If California wants to impose stricter auto emissions standards on itself then I don't have a problem with it. I also think pot should be legal.

If you can you think of a specific example of that last bit I'd be happy to let you know what I think.

[mrbogey.livejournal.com]

You ever notice that in response to a question you generally use a "tu quoque" that includes your own assertion of what others believe even when they don't actually believe it?

[underlankers.livejournal.com]

This ignores the most important counterarguments: we've already had the argument about Nullification, and then had an argument about Secession. The government won, so GTFOI.

[weswilson]

The constitution is a framework by which Americans govern themselves. The restrictions placed within it were not written to defy common sense and logic. The substance of the document is a series of checks and balances to the powers of various agencies. It is a rough draft at best, penciling in the vague guidelines for a cohesive and functioning government. But it is not enough, as a single document, to justify legislation or governmental focus on all issues.

Our nation has evolved. Business, social and governmental structures have changed to the point of being unrecognizable by our founding fathers. To continue trying to measure all circumstances with a finite number of dated identifiers is a sure way to ruin. As our circumstances change, we continue to try and evaluate and direct our nation via our founding documents, but keeping oneself deliberately oblivious to the growing understanding of cause and effect is not wisdom... it's willful ignorance. We have to change our approaches to government as our history exposes new detail on our journey.

The power of government changes with the tides of public opinion. The government, at its very core, is the union of political interests of our nation. Should the will of the people desire we change to a monarchy, we are well within our power to do so. There is no portion of the constitution that could not be wiped away by the people.

I support the Constitution as a way for us to govern ourselves. But I'm with old TJ that we need to evolve our understanding as our nation evolves.

"The Gothic idea that we were to look backwards instead of forwards for the improvement of the human mind, and to recur to the annals of our ancestors for what is most perfect in government, in religion and in learning, is worthy of those bigots in religion and government by whom it has been recommended, and whose purposes it would answer. But it is not an idea which this country will endure."

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

[devil-ad-vocate.livejournal.com]

what you said.

[badlydrawnjeff.livejournal.com]

It is a rough draft at best, penciling in the vague guidelines for a cohesive and functioning government. But it is not enough, as a single document, to justify legislation or governmental focus on all issues.

How do you come up with this perspective, though?

I support the Constitution as a way for us to govern ourselves. But I'm with old TJ that we need to evolve our understanding as our nation evolves.

Sure, but we were also provided a document with a mechanism for change, were we not?

I suppose I'm still looking for an answer to the question, even though I do find this perspective to be interesting.

[mijopo.livejournal.com]

Thanks for the TJ quote, wasn't familiar with that!

[telemann.livejournal.com]

That's some quote from Jefferson. Thanks ;)

[kinvore.livejournal.com]

Yeah I've always felt it wasn't supposed to be a rigid document. Part of why it's worked for so long is it is flexible enough to endure many changes in society over the centuries.

I think it's about rights, not limits.

[meus-ovatio.livejournal.com]

I thought the Constitution was a death-knell for State's Rights, considering as how it was explicitly written as a way to preserve only a modicum of state power as hand-out to the hold-outs, when the real issue was fashioning one union, one government and one nation.

What you're missing is that one can only serve one master. Federalism is a fancy end-run around people's sensibilities so that we can get on with the project of one union, one government, and one nation.

[meus-ovatio.livejournal.com]

This isn't really provocative. The Constitution was written to avoid Civil War. It accomplished this task for about 80 years. The Civil War was simply the argument actually taking place. As Americans, we have no historical reason to hold to a state ideology... they existed as functions of a past colonial reality... a reality which we sought to erase and destroy. Personally, I have no sentimental or ideological attachment to the idea of sub-territories or administrative divisions. There is no great historical tradition of state identity, and they are simply an aberration of European colonial administration. Our states are little more than administrative divisions like any other administrative division. Getting me to have any great feelings about that is just silly and stupid. I mean, get real.

[penguin42.livejournal.com]

do you believe the Constitution puts any restrictions on the powers of the federal government?
If your answer is yes, what restrictions would those be?

I don't know about enumerating *all* restrictions, but how about starting with needing two separate houses of elected representatives, plus the elected head of the government's executive, to approve new laws via a specified system, before they can be carried out by the government? And then have a third, appointed group have the power to decide that actions carried out by the other two were improper?

Yeah I'm being a bit tongue-in-cheek here, but honestly there are plenty of restrictions laid out in the constitution that most people seem to just take for granted nowadays. I think Balko's real question is "are there any restrictions as to the kinds of laws that congress can pass and the executive can carry out."

My 30-second answer? Yes, there are, but they're sufficiently vaguely defined in the actual text of the constitution that we're left to use the mechanisms of government we have to hash out exactly where to draw the line. Does that mean the line could change over time as ideologies shift? Sure. I don't think that's necessarily a bad thing.

[nevermind6794.livejournal.com]

It's been a while since I read the whole thing, but there is a specific section of the Constitution called "Limits on Congress." If the whole document was meant to circumscribe power, I don't see why they'd need to specify that particular list.

Within those confines and those in the Bill of Rights, I think Congress can pass whatever bills it wants that can be justified by the necessary and proper clause, commerce clause, and all the other clauses I don't feel like listing. Yes, that is wide-ranging, but the point is that the electorate runs the gallows if politicians provide enough rope.

[gunslnger.livejournal.com]

It's been a while since I read the whole thing, but there is a specific section of the Constitution called "Limits on Congress." If the whole document was meant to circumscribe power, I don't see why they'd need to specify that particular list.

And right before that is the section titled "Powers of Congress". Why would they need to enumerate them if it could have any power they wanted except for the limits?

[squidb0i.livejournal.com]

"If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?"

Oh, so it's either his interpretation (top down spoon fed, no less) or it's "no real restraints".


You GET that straw man, Balko!

[jerseycajun.livejournal.com]

It's a fairly practical interpretation. If the justification is open-ended enough, then the door opens very wide indeed. The wider that door opens, the fewer the circumstances which can be imagined for which it clearly may not act..

If, as in Wickard, the commerce clause is said to allow Congress to regulate any human activity which in the aggregate may have an economic impact, then congress could at least in principle, restrict your choices from who you can buy your next vehicle to only American made vehicles. Or perhaps a new study reveals a connection between nose-picking and brain cancer. Now that we're all responsible for each other's health, you may be reported to the IRS for penalty if your doctor discovers you've been sticking your finger where it shouldn't go.

Now, I freely acknowledge that the above examples are purposefully ridiculous, and extremely unlikely to actually take place, but in principle you are conceding that there is no legitimate barrier between congress and the ability to do the ridiculous if you hold that the reading of Wickard is kosher.

And though it may not do these ridiculous things with that power, there are more than enough examples of the ridiculous in U.S. government that it wouldn't take that much imagination for them to come up with an implementation of it to offend even your senses.

[mrbogey.livejournal.com]

Actually the fallacy would be false dichotomy if you wanted to lay down a fallacy but I think it's a fair assessment of the issue.

[enders-shadow.livejournal.com]

Is it unwise of me to leave this up to the learned legal scholars?

I'll admit ignorance of the court case precedents and the legalese that permeates the law.

All powers of the govt ought be derived from the people. Be that govt state or federal.
It matters not, to me, which is in control--state or federal.
So long as they be moral.

[torpidai.livejournal.com]

All powers of the govt ought be derived from the people. Be that govt state or federal.
It matters not, to me, which is in control--state or federal.
So long as they be moral.

I recon the only way you will ever get this is by controlling, limiting and fixing present and future income of those who control said powers!

[tridus.livejournal.com]

It seems to me like when it was written, they were worried about an expanding government that got into everything not expressly denied somewhere in the Constitution. That's what James Madison felt when it came to the bill of rights, at least:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

The Ninth Amendment specifically deals with the rights of the people, not the government (http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution).

Does that mean the Federal Government should be forbidden from doing almost anything today? I don't necessarily think so, because the world has changed and you have to apply some kind of sense to this. But "it's not forbidden in the Constitution, therefore its okay for the government to control it!" is exactly the kind of thing that people were originally worried about.

[light-over-me.livejournal.com]

In looking at the responses so far, I think what this question comes down to is whether or not the Constitution should be taken as a living document, so to speak. What people are saying is that our interpretation of it should change with the times, no?

Given that, the question I'd like to ask is- what is it about current times that have change significantly to justify this kind of interpretation (health insurance mandate)? What are our criteria for justifying changes in interpretation due to changing times?

Now I'm not saying I'm against the "changing times" justification, as there have been some pretty significant events in our history since the Constitution was written. However, this argument is often very general, and very vague. Without specifically defining what has changed drastically enough to warrant the changed interpretation, we are opening up a very wide interpretation across the board. So I think we should start there.

[underlankers.livejournal.com]

The problem with taking the legal terms of the 18th Century and applying them to the 21st Century is that the 18th Century took slavery for granted and Jefferson for one expected the USA to remain a giant agricultural country and eschew that evil nasty industrialism nonsense. Then along came a little scuffle across five Aprils and the Hamiltonians won. The Jeffersonians have never quit bitching about it since.

[gunslnger.livejournal.com]

Looking over Article 1, Section 8 again, I just realized that the general Welfare clause is even more restrictive than I had previously thought. It's given as just a reason for being able to collect taxes. The power being granted is the power to collect taxes and duties. It's not given the power to provide for the general welfare any more than it's given the power to provide for the common defence. It's collecting taxes for the purpose of providing the common defence and promoting the general welfare, and the power to do those is given in the later explicit powers.

[foolsguinea.livejournal.com]

Do you think a modern Yank has any reason to give a flying speck of dust--what property owners (who were substantially slavers) in the east coast states days of the Articles of Confederation thought about appropriate federal power? Because that's who ratified the Tenth Amendment.

Not anyone west of the Appalachians.
Not anyone who worked for a living.
Not anyone who grew up in the USA as a unified nation.

Instead of assuming there's a good reason for the Tenth today, look at where it comes from.

[foolsguinea.livejournal.com]

And yes, that applies to the entire Bill of Rights, & the main articles of the Constitution. Instead of groveling before tradition, let's consider the actual consequences of a given policy for the land we live in--and that land as we know it, not as some (relatively ignorant) self-important landowner terrorists in the age of bleeding as cure-all imagined it!