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.

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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?

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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

[weswilson]

"merely a framework for how the gov't was then but not relevant to now other than as a historical comparison point."

I don't that that's fair. "Thou shalt not murder" is relevant, even if it's not 100% applicable to all situations. The evolving understanding of our constitution and its ramifications may one day make it obsolete and in need of a fresh start, but I don't see that era as any time soon.

The Constitution can say, "We should limit things" without saying "We must limit things". Additionally, the things that were limited in 1778 to maximize freedom are not addressing the same oppressions as we are in 2010. With changing standards of what freedom means, we find our need to limit government differently.

[gunslnger.livejournal.com]

So, is it a limit on gov't power to some number of explicit powers and no others (regardless of what you think those powers are or whether they change over time), or is it a limit on what few freedoms are protected from gov't power (regardless of what those freedoms are or whether they change over time) but everything outside of that is fair game?

[weswilson]

I can think of no explicit power that is positively forbidden the federal government. There are mitigating factors on every prohibition in the Constitution. Now, some of those mitigations kinda redefine the powers and make our prohibitions more categorically troublesome. It is true that there is a prohibition against Murder in this country, but we have a host of self-defense and scaling concepts that change how we view murder in a variety of circumstances.

I think the Constitution is more a guideline of how to look at freedoms in comparison to government power. It is a way to prioritize some freedoms as serving a higher purpose than governmental action. But that is not to say that those priorities will not change over time, nor that the scaled values of individual freedoms will not be overtaken by some other need.