A Constitution of Convenience

Julian Sanchez | June 8, 2005

This Washington Post editorial on the Raich decision exemplifies a mode of constitutional argument I invariably find irritating (also on display in Cass Sunstein's end of this Legal Affairs debate with Randy Barnett):

The plaintiffs in Raich, patients who regard pot as essential medication for their conditions, contended that because their use of the drug is noncommercial and within a single state that tolerates medical marijuana, the federal government lacked the power to stop them. This may seem like an attractive principle, but consider its implications. Can Congress protect an endangered species that exists only in a single state and may be wiped out by some noncommercial activity? Can it force an employer who operates only locally to accommodate the disabled?

Now, as it happens, I'm not terribly sympathetic to either of those policies in the instance. But even if I were, it surely wouldn't follow that the Constitution must empower the federal Congress to act in those cases, just because they're so awfully important. I am actually sympathetic to the idea that there ought to be federal regulation of pollution that isn't well constrained by state borders—I think the Constitution should've been (and should be) amended to grant it that power. That doesn't mean I think it must already have that power. Obviously, at some meta-level, your reading of the scope of constitutional rights and powers is going to be informed by some assessment of the consequences. I don't think it's reasonable to read the First Amendment as making laws against fraud or murder threats impermissible, even if some kind of hyper-literal construction might entail that. But if your notion of what the Constitution permits or forbids is just going to be guided by the sense that it would be a bad scene if Congress couldn't do something—note the total absence of a textual argument here, as if to say "it sure doesn't look like interstate commerce, but that doesn't matter"—well, why bother with enumerated powers (or a Constitution) at all?

Comments

Crank|6.8.05 @ 7:04PM|#

If the Constitution is always whatever it ought to be, then there's not much point in writing the thing down, is there?

|6.8.05 @ 7:19PM|#

Is it, as you state, an asinine argument. Any limit on government power will inevitably prevent the government from doing certain Good Things on occasion. Therefore, a limit that is interpreted in a manner that never prevents the goverment from doing Good Things is actually no limit at all.

|6.8.05 @ 7:43PM|#

Irritating, but all too typical. Have you ever seen a NYT editorial about a Supreme Court decision that didn't judge the opinion solely on the basis of whether the result was consistent with the Times ed-board's politics?

|6.8.05 @ 7:48PM|#

Here's my pragmatic take:

It is inevitable that, when the circumstances and sentiments are right and the leaders are sufficiently callous and the public sufficiently complacent, enumerated rights and powers will be ignored. If not explicitly ignored then swept under the rug via creative interpretation.

The biggest value of enumerated rights and powers is that good, explicit wording can at least SLOW the erosion of rights by making the concepts more popular and more resonant with the public. And by providing more justification for judges who wish to uphold unpopular positions. Indeed, if our Constitution were less explicit than it is, the erosion probably would have happened faster.

More durable are checks and balances via institutions and procedures (although even those can be eroded when a well-disciplined party takes control). I don't know how robust our freedoms will be in 50 years, but I predict that the forms and procedures of the Constitution will remain in place (bicameralism, judicial review, etc.) simply because each institution has people in it with a vested interest in maintaining power. The legislators and executive officers and judges might not always exercise their roles in a manner that checks the power of government, but at least those roles will remain in place if later office-holders care to exercise them more aggressively.

So, while the 10th amendment is nice, what would have been nicer is if the Constitution had stipulated a super-majority requirement for creating new departments and increasing or introducing taxes. A clause empowering officials to throw a monkey wrench into the works is more valuable than "thou shalt not" clauses.

|6.8.05 @ 9:47PM|#

I wish the founders had possessed the foresight to include punishments for intentionally trying to expand the scope of government beyond those powers granted by the Constitution. "Congressman Smith, the court finds that your plan to take property for the benefit of a private corporation is unconstitutional. We also sentence you to a horsewhipping in the public sqare."

|6.8.05 @ 10:18PM|#

I always liked Heinlein's idea from "The Moon is a Harsh Mistress": one chamber needs 2/3rd majority to pass laws; the other chamber needs 1/3 minority to repeal laws.

|6.8.05 @ 10:19PM|#

Serious question:

under what part of the constitution is the authority to create social welfare programs like Social Security or WIC derived? I was asked that question and haven't been able to find any reliable answer.

|6.8.05 @ 10:34PM|#

Sandy-Either the ICC or promotion of the general welfare.

|6.8.05 @ 11:59PM|#

Funny how REAL federalism is so easily dismissed by the Supremes and the media but the kind of "fake federalism" practiced by Eliot Spitzer is fawned over without a question.

|6.9.05 @ 12:01AM|#

We also sentence you to a horsewhipping in the public sqare.

That's not a punishment, that's an S&M fetishist's fantasy.

The offending politician should be shot in the head on the floor of the Senate in front of the assembled Congress. Afterwards, the body hung in a gibbet overhead as a warning to rest of the wonks who think it's their duty to vote away our rights. The perpetual sight and smell of rotting shyster should be enough to remind our officials of their duty to protect the Constitution.

Glen|6.9.05 @ 1:21AM|#

"I am actually sympathetic to the idea that there ought to be federal regulation of pollution that isn't well constrained by state borders�I think the Constitution should've been (and should be) amended to grant it that power." An amendment would certainly clarify matters, but I think interstate pollution by industry is something that *does* fall within the parameters of the Commerce Clause as written. Intrastate pollution would be another matter. I suppose there would be threshhold issue, inasmuch as there's a gradient between clearly-intrastate and clearly-interstate. Are you doubting whether imposition of costs on out-of-state third parties constitutes "commerce", since (by hypothesis) no money changes hands?

|6.9.05 @ 1:46AM|#

If the only stretch of the interstate commerce clause was regulation of significant pollution that crosses state lines, well, I think I could live with that creative interpretation.

It's all of the other stuff that has me upset.

|6.9.05 @ 1:53AM|#

Akira,

Forfeiture of all property to the public treasury and exile worked for the Romans. All public servants convicted of serious malfeasance should be penalized in this manner. Minor malfeasance can be dealt with by large fines, dismissal, loss of the right to vote, and a permanent ban from public employment.

QFMC cos. V

|6.9.05 @ 9:12AM|#

Since newspaper editorial often appear anonymous, I'll point out taht it sounds like the stupidity of Benjamin Wittes. It's the same argument he used in his piece in the May 2005 issue of The Atlantic and he's on the Post's editorial board.

R C Dean|6.9.05 @ 10:04AM|#

Sandy-Either the ICC or promotion of the general welfare.

BZZZZT. Incorrect. The "general welfare" clause does not grant powers to the federal government. Instead, it states the purpose for which the enumerated powers may be used. If anything, it is a limitation on federal power, not an expansion of it.

As for whether confiscation of property from one person by the state to give to another constitutes a regulation of "commerce" among the states, I would suggest not.

Marijuana for the Masses|6.9.05 @ 12:15PM|#

Whether or not you agree with marijuana use, the government has successfully used the issue to seize absolute power. So much power in the hands of 9 and for 6 to get it so wrong, makes you wonder about our system.

It is official, states no longer exist as anything more than federal territories.

MP|6.9.05 @ 1:22PM|#

BZZZZT. Incorrect. The "general welfare" clause does not grant powers to the federal government. Instead, it states the purpose for which the enumerated powers may be used. If anything, it is a limitation on federal power, not an expansion of it.

BZZZZT. Incorrect.

Constitutionality of Social Security Act

Mark Bahner|6.9.05 @ 11:05PM|#

"Serious question: under what part of the constitution is the authority to create social welfare programs like Social Security or WIC derived? I was asked that question and haven't been able to find any reliable answer."

The answer is that there isn't any part of the Constitution that grants the federal government that authority. As James Madison said:

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents."

Mark Bahner|6.9.05 @ 11:10PM|#

MP refers to the Social Security Administration website which (surprise!) thinks Social Security might be Constitutional under the General Welfare clause.

James Madison begs to differ:

"With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

http://quotes.liberty-tree.ca/quotes.nsf/QuotesByCatPerson?ReadForm&RestrictToCategory=James+Madison

Mark Bahner|6.9.05 @ 11:19PM|#

"Are you doubting whether imposition of costs on out-of-state third parties constitutes 'commerce', since (by hypothesis) no money changes hands?"

Let's not forget the actual history of the "commerce clause." The commerce clause was written to give the federal government the power to make commerce EASIER among "the several states."

Under the Articles of Confederation, the "several states" were erecting barriers to trade, and power was authorized to the federal government to ENHANCE trade.

I have virtually no doubt that virtually every single signer of the Constitution would be appalled by the way the federal government uses the "commerce clause."

|6.10.05 @ 11:30AM|#

I agree with the majority of responses. Theagitator (http://www.theagitator.com/) dutifully noted a law professor who has difficulty remembering the 9th and 10th ammendments.
http://www.chicagotribune.com/news/opinion/chi-0506090024jun09,0,1578397.story?coll=chi-newsopinioncommentary-hed

In order to respond the this professor, here is his email: [e-mail]

I think the majority of you would do a better job than I could.