Constitution

Does the Constitution Still Matter?

Americans right and left tend to give up on the Constitution whenever it gets in the way of policies they like.

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 Does the Constitution still matter?

When it was written, Ben Franklin said the Founders gave us a republic, "if you can keep it." Few people thought the republic would last another 227 years, but it has. The Constitution's limits on government power helped create the most free and prosperous country on earth.

But now, some Americans, right and left, give up on the Constitution whenever it gets in the way of policies they like. Some on the right defend anti-obscenity laws or want more mingling of church and state, while those on the left want endless economic regulation.

Sen. Tom Coburn (R., Okla.) asked President Obama's Supreme Court pick, Elena Kagan, "If I wanted to sponsor a bill and it said, Americans, you have to eat three vegetables and three fruits every day, does that violate the Commerce Clause?" Amazingly, Kagan wouldn't say, "Yes, of course!" She dodged the question.

Once on the Court, Kagan was part of the 5-4 majority who concluded the government can force us to buy something much more expensive than fruit and veggies: Obamacare can force us to buy health insurance.

Progressives have no problems with that. On my TV show, Ian Millhiser of ThinkProgress.com said government making you buy vegetables isn't so strange: "I don't know how to tell you this, but government already makes you buy things like broccoli. What do you think food stamps are? What do you think school lunches are? The government has the power to tax you and buy things with it."

Even creepier than wanting government to have so much power is the way progressives shift their arguments to get policy outcomes they want.

In 2009, Obama said that while Obamacare imposes a penalty on anyone who doesn't buy health insurance, "Nobody considers that a tax." The next year, when it appeared the Supreme Court would allow a tax but not a penalty, The New York Times reported, "Administration, Changing Stance, Now Defends Insurance Mandate as a Tax."

How effective is the Constitution if the Supreme Court itself is willing to help the President and Congress weasel their way around the constraints on federal power that the document was intended to impose?

Millhiser said that Congress has broad power to regulate commerce, to control things like hiring and firing, but can't pass laws against rape and murder. I'm glad Millhiser recognizes some limits, although he seems to suggest that the feds can do whatever they want except pass laws that might actually protect people.

Tim Sandefur of the Pacific Legal Foundation came on my show to rebut Millhiser, saying the Founders didn't expect government to control everything that goes on in the economic realm any more than they expected it to control speech.

"The Constitution is a promise about how government power is going to be used. It's a promise written by people who had experienced life under tyrannical government," says Sandefur. "The lesson they learned from that and from their knowledge of previous tyrannies was that the most important issue is to wall off government power from our private lives and to make sure that nobody—not elected officials, not a king, not a dictator—gets to dictate how we live our lives."

The Constitution doesn't get the respect it deserves, but it can still slow the growth of government. In 1895, Congress passed an income tax, but the Supremes said, no, the Constitution does not give you that power—and the income tax was struck down. America at least avoided a national income tax for the next 18 years, until Congress and state legislatures approved an actual Constitutional Amendment.

The Constitution has also limited the power of politicians to ban handguns and political campaign contributions. Each time the Supremes say "no," that may make the next crop of politicians a bit humbler.

The Constitution reversed President Harry Truman's nationalization of the steel industry. Maybe that deterred Presidents Bush and Obama from nationalizing America's banks after the collapse of the housing bubble. Maybe.

We benefit from the Constitution's existence nearly every time it stymies politicians' ambition to control us.

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  1. Few people thought the republic would last another 227 years, but it has.

    No, it hasn’t.

    1. BUT CORPORASHUNZ! KOCHTOPUS!

    2. Yeah, I think the official death of the republic of sovereign states came with the direct election of Senators.

      1. 1933…New Deal…1942…Wickard

        1. 1861 – Civil War

    3. No, it hasn’t.

      Indeed. The survival of the state says nothing about the survival of the principles of liberty and federalism that it ostensibly rests upon.

      On both counts, the modern US deviated miserably from the ideals enshrined in the federal and many state constitutions.

  2. Speaking of the constitution, how was the draft ever constitutional? Conscription for a state militia was common in colonial times, but there is nothing about conscription in the US constitution. It says Congress has the power to “raise and support” armies.

    Army clause

    1. And the language of the 13th amendment clearly prohibits it.

    2. Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.

      Seriously, that was what the Court said. Fuck every last one of those Justices with a razor-wire dildo coated in sulfuric acid.

      1. ” as we are unable to conceive…”

        This is called an argument from ignorance.

        How does slavery become not slavery just because a bunch of people say it is not slavery?

        This goes back to my theory that all human interactions are basically popularity contests: wars, elections, Nobel prizes, court cases, you name it.

        1. It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it. Vattel, Law of Nations, Book III, c. 1 & 2. To do more than state the proposition is absolutely unnecessary in view of the practical illustration afforded by the almost universal legislation to that effect now in force.

          The Court then lists every country which had a draft in place at the time. Yes, the most esteemed Supreme Debate Club uses “BUT MOM, GERMANY DID IT” as an argument.

          1. “It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it”

            Sure it may be doubted, since there is no actual proof that there is any such thing as an inherent affirmative obligation to do anything.

        2. How does slavery become not slavery just because a bunch of people say it is not slavery?

          Fuck

          You

          That’s

          How

          1. Ah, yes. I forgot the 1st unstated law of laws.

        3. It’s worse than ignorance. It’s pure FYTW. The Court simply refuses to consider the possibility that the draft might be unconstitutional. It starts with the idea that the draft must be Constitutional, and works from there. Sure, that’s how the Court often works behind the scenes, but they don’t even try to hide it in the Draft Law cases.

          1. They’ve actually admitted that’s how they do things. There was a supreme court judge that wrote a book on how the court was supposed to automatically assume the government was right.

            Basically, the entire burden of proof lies on the shoulders of the ones bringing suit against the government, and the courts job is to figure out a way to twist the law into some version of legality.

  3. We benefit from the Constitution’s existence nearly every time it stymies politicians’ ambition to control us.

    That hasn’t happened to a significant extent in a very long time. When the government wanted to ban and regulate alcohol, it had to pass a constitutional amendment to allow it to do so. When the government wanted to ban and regulate drugs, it just did it, because FYTW. And that’s not even taking into consideration abominations like the penaltax.

    1. With the exception of the 2nd Amendment, which even still remains one progressive SCOTUS ruling away from obsolescence.

  4. On my TV show, Ian Millhiser of ThinkProgress.com said government making you buy vegetables isn’t so strange: “I don’t know how to tell you this, but government already makes you buy things like broccoli. What do you think food stamps are? What do you think school lunches are? The government has the power to tax you and buy things with it.”

    THAT DOESN’T MAKE IT RIGHT!

    I get tired of the “Well, we’re already doing it, so just deal with it, it’s nothing new” argument coming from glib progtards like Millhiser. Precedence is not a moral case for doing the wrong thing.

    1. “Precedence is not a moral case for doing the wrong thing.”

      I wish SCOTUS would remember that from time to time.

  5. “The government has the power to tax you and buy things with it.”

    Yeah, but should it, you jackass?

    More derp from Millhiser:

    http://www.youtube.com/watch?v=UOQyINYZboY

    1. For those unable to view, he argues that Congress has the power to regulate interstate commerce, then defines interstate commerce as all economic activity. He also uses the “general welfare” line as proof that Congress should be in charge of healthcare.

      There was a funny part where he said that if Obamacare is unconstitutional, than so is Medicare.

      1. Constitution abridged: The federal government can do anything necessary and proper to regulate commerce and promote the general welfare.

        1. Shorter Constitution:

          Fuck you, that’s why!

      2. *then

        I hate it when I make typos.

        1. At least you recognize the difference…unlike some…

          Pet peeve. Then/than.

          1. So what’s the problem than?

  6. Have I mentioned I like Stossel?

  7. The only fully functional part of the Constitution, at this point, is the Free Speech and Free Press Clause.

    Nearly everything else is a dead letter, replaced, at best, by the musings of the Supreme Court. “Constitutional law” is about 99% SCOTUS opinions, with the occasional off-hand reference to the actual document itself.

    1. thanks for cheering me up, MM.

    2. Actually, the only section that is truly adhered to is the 20th Amendment authorizing the President to be sworn into office on Jan 20th after his/her election.

  8. “But whether the constitution is one thing or another…”

  9. The biggest issue with the constitution is that the founding fathers didn’t foresee Marxist ideology. I mean, how could they have?

    And on the food stamps/school lunch nonsense – there is a huge difference between the government providing or controlling how handouts are used or what meals they offer in subsidized programs. No rational and intellectually honest human being could possibly see that as the same as requiring every citizen buy vegetables and fruit for daily consumption. Only a disingenuous leftist could argue that.

    Progressives do this all the time, too. Bill Maher likes to call things like the GI Bill, the VA, and every service the government provides as socialism to show that Americans love it. I know some people around here will object, but benefit packages (no matter how misconceived they may or may not be) do not constitute socialism. In the two examples above, soldiers sign contracts. They serve the country doing a shit job for several years in return for those benefits.

    That is not the same as wealth redistribution and free shit for people too lazy and/or incompetent to work.

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