Strengthening Constitutional Self-Government

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Congress

What should Congress Do?

The economy is, obviously, the main issue.  But, other than getting the budget closer to balance, I am not sure there's much the federal government can do.  If oil jumps well above $100 per barrel again, perhaps there will be room to argue for more wells, and more natural gas.  If corn prices spike, or there's a real scarcity of food, perhaps we can start to work for ending the ethanol mandate.  In addition, the move to more freedom friendly regulations (as opposed to simple deregulation or the command and control version) would be good.  A tax code with fewer looholes would probably also be good. (The slogan: "The campaign against K street.")

Beyond that, perhaps Congress should play some small ball.  As I have noted before, it would be good for them to repeal the ban on the incandescent buld, and regulations that limit the size of our toilet tanks.  Perhaps I'm wrong, but I suspect both those would be popular moves with the majority of Americans (even if they might not get a majority of votes among people who read the NY Times with their breakfast every day).

Might it also be possible to make some moves against political correctness and related things?  Could Congress require all schools that take federal funds not to have speech codes? Could they require that the difference between candidates admitted via affirmative action (and perhas legacy and athletic friendly admissions as well) not exceed, on average 5% on standardized tests?

Perhaps I'm mistaken, but I suspec that most Americans think that diversity training is an expensive joke, and a waste of time.  Would it be possible to change the underlying laws that lead businesses to have such training? Perhaps the law could stress the obligation of employers not to discriminate based on race, sex, etc., but also include a finding indicating that in a free society we have the right to offend each other, and that disciminiation requires much more than offensive speech or behavior. (It might be that the law technically allows that, but the common interpretation, and company policies that follow it, are often less open to free speech. Perhaps Congress could try to fix that).

Lawyers, particularly trial lawyers are not popular.  Are there any actions that Congress could do to make it harder to create class action lawsuits?  

Could Congress legislate against the finding in Kelo, at least as it applies to federal takings. Relatedly, could Congress expand the legal definition of a regulatory taking?   If memory serves, Congress did something after Kelo, but it was relatively weak.

Could Congress legislate against disparate impact?  (Has this issue been polled?  If asked, would most Americans think that it is reasonable? I suspect most Americans would want proof of actual discriminiation in a particular case, and not a mere statistical correlation). 

Those are just a few ideas dashed off quickly. Not sure if they're on target, but it's worth thinking about.  The legislature is Article I, pace Joe Biden, because it was supposed to be the most important branch, and the House of Representatives is first in that section because it's closest to the people.  It would be good to see Congress following public opinion on some of these issues.  The House, of course, does not make law on its own.  There are higher, and hopefully more thoughtful branches, that can refine the raw ideas put forth in Congress. But the House is where things are supposed to start, not the regularory bureaucracy, where some of these laws, regulations, and interpretations have come from.

Categories > Congress

Discussions - 9 Comments

Hey, here's a crazy idea: maybe Congress could collectively recognize that vast swathes of Federal legislation, regulations, and bureaucracies are grossly unConstitutional and unjust. Maybe they could start debating the best way to end Soc Sec/Medicare, not how to 'fix' the unfixable. But no, can't have that; why that might lead to the unleashing of the marketplace, the entrepeurnial spirit of the nation; it might even become relatively cheap for a rich man to sink a hole in the ground, pull up some crude, build a refinery, and turn it into gasoline. The horrors!

It's easy to rant, but what practical steps can be taken to move us back to limited constitutional government. It ain't going to happen all at once. We live in a democratic republic, after all.

True in one sense, but sometimes things happen suddenly and unexpectedly. Who, after all, expected the Berlin Wall to fall? The Sov Union to break up? It has never been easier for a citizen to read and understand the Constitution than it is today; it takes almost no effort to access it, b/o the 'Net. Therefore it is easier and easier to challenge the Left's 'take' on, e.g., the Commerce Clause and the 'General Welfare' language. It's crisis time. If we move incrementally, we may just hit the wall at 70 mph i/o 90. Still get squished.

Some time ago, Robert Bork offered that a judge who attempted to issue an opinion prohibiting the issuance of paper money (an activity which one could, per Bork, make a reasonable case is not a delegated power) would not be a meticulous interpreter of the Constitution. He would be a madman. It was in these circumstances that the practice of stare decesis was valid.

Some welfare programs (e.g. housing subsidies) can be dismantled fairly readily because the bulk of their clientele are of an age where they can adjust to changing fortunes and economic circumstances. However, most welfare expenditure is for the benefit of people for whom the programs themselves have been a feature of their long term planning and who are not in a position where ready adjustments to circumstance can be effected. Quite apart from that, the programs per se are not an object of much public antagonism. Faced with the choice between a decades long process to dismantle programs with which the public is content and modification of Article I to make Medicare kosher, I think most people would opt for the second course of action.

That is a problem with much discourse of this sort. The positive law demands respect. The positive law is not, however, the embodiment of justice. It is an artifact one hopes will, in its operation, bring one closer to justice. Once the question comes to be what the Constitution should say, an invocation of the document's text or the framers' intent is vacuous. If you are proposing to dismantle Social Security or Medicare, the question of what Article I should say is the question you are facing.

Apart from that, regulatory agencies such as the Food and Drug Administration or the Federal Aviation Administration actually are regulating transactions which occur across state lines. There may be an esoteric meaning of 'interstate commerce' which restricts it to conveyances and inns (I think some have contended this), but manufacturing pharmaceuticals in Indiana and shipping them to New York sure looks like interstate commerce. There are broad swaths of labor law, occupational health and safety regulation, and public accommodations law which would not pass muster as 'interstate commerce' by any proper understanding of that term, and portions of environmental law as well. However, these areas of law are the exception.

to art deco:

Whatever. Once upon a time, the average reasonable person understood, and was expected to understand, that the Commerce Clause was intended to prevent one state from imposing a tariff on goods from another state. Period. Using it in the way Congress has for lo these many decades makes a mockery of the Tenth Amendment, and any other expression of the limitation on the power of the Fed Gov't.

While it may be true that a majority of people would not want the Fed Gov't to be limited in the way the Constituion states it should be, that does not mean the Constitution doesn't mean what it says, nor that we shouldn't try to enforce it. If the people are so all-fired interested in forcing people to pay into a gov't retirement plan, or to take money from a waitress in Des Moines to pay for the medications given to an indigent patient in Poughkeepsie, let them amend the Constitution to say so. Negligently electing officials who flagrantly violate the Constitution is the action of a scofflaw nation. This will not end well.

Once upon a time, the average reasonable person understood, and was expected to understand, that the Commerce Clause was intended to prevent one state from imposing a tariff on goods from another state.

The 'average reasonable person' knew no such thing. What construction courts put on the commerce clause in the antebellum period I leave to legal historians.

The specific provision is as follows:

"Congress shall have the power"... followed by a list, one item among which is

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

The plain meaning of that is a permissive delegation to the federal legislature, not a prohibition upon the state legislatures or municipal councils.

that does not mean the Constitution doesn't mean what it says, nor that we shouldn't try to enforce it.

The Constitution means what it says. The question at hand is whether it would be advisable for different constitutional language to be adopted. To answer that question, you cannot merely appeal to the document's extant language. You have to have a conception of what political economy should be. And no, we should not attempt to enforce provisions of the law which have fallen into desuetude. You need to enact new law. You may be down with chucking nursing home patients out on the street to atone for our deviation from Mr. Madison's wishes. Much of the rest of the population is not down with that.

Blah blah. It shouldn't haved to be said, but apparently in these denial-ridden times it must: a document ought to be taken as a whole. If the verbage in one section seems to contradict the verbage in another, we ought not to chuck one of the sections. We ought to seek a way to harmonize the two. In this case, a 'plain text' reading of the Commerce Clause, w/o reference to the 10th amendment (and w/o reference to the other writings of the authors of the Constitution), does seem to justify the Congress doing any dernfool thing it wants to do. No meaningfully enumerated powers, because this one power trumps'em all.

But, of course, a reasonable 'take' on the entire Constitution, reasonably informed by what the Framers themselves said about it, would lead the average person to recognize that the Commerce Clause was not meant to do anything but prevent the states from levying tariffs on each other.

We shouldn't be having a national conversation on how to 'fix' the unfixables: SocSec, Medicare, etc. We should be having a national conversation on how best to end the 'entitlement' programs (since, in fact, the citizens are not entitled to take money from a waitress in Fresno to pay for the nursing home care of an indigent grandmother in Phoenix; they just do it anyway because we're in denial); we should be having a national conversation on how best to end these disastrous departures from the Constitution. Reasonable people might disagree on the details, but if we ever actually return to enough wisdom to have such a conversation, I'm sure we'll have enough wisdom to realize that most of us will have to suck it up enough to continue most of the benefits presently in place for most of the very elderly.

I have a slight hope that we will return to such wisdom. The Constitution has never been more easily read by the average person than it is now, thanks to the 'Net and cellphones. Those who are inclined to actually read it and follow it (i.e. the very politically conservative) are probably having children at a much higher rate than those who aren't so inclined (e.g., Democrats). I all ready have twice as many children than my two ultra-lib older brothers combined, and my kids are even more conservative than I am. Soon we may have the libtards outvoted. Just think of it as evolution in action. Survival of the fittest. Last man standing.

In this case, a 'plain text' reading of the Commerce Clause, w/o reference to the 10th amendment (and w/o reference to the other writings of the authors of the Constitution), does seem to justify the Congress doing any dernfool thing it wants to do. No meaningfully enumerated powers, because this one power trumps'em all. But, of course, a reasonable 'take' on the entire Constitution, reasonably informed by what the Framers themselves said about it, would lead the average person to recognize that the Commerce Clause was not meant to do anything but prevent the states from levying tariffs on each other.

Doc, the text of the 10th Amendment is as follows:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

That does not contradict any specific delegation to the federal legislature, and the power to regulate inter-state commerce is a specifically delegated power. The power to so regulate does not give the Congress plenary powers and does not have much to do with public insurance schemes. It does give Congress the power to regulate certain types of transactions. The export of pharmaceuticals from a plant in Indiana to a retail outlet in New York is inter-state commerce. You are going to have to do better than kvetching about the 10th Amendment to demonstrate the Pure Food and Drug Act is unconstitutional.

Social Security is readily reparable by having the retirement age on an escalator congruent with actuarial soundness. Public medical insurance is a tougher nut to crack, but knowledgeable libertarian critics of these programs (e.g. Thomas Sowell and Milton Friedman) have had their proposals to repair them. They are not irreparable.

Mr. Madison's wisdom, such as it was, is not much help in addressing the dilemmas we face in the realm of social policy.

RIchard Adams, the size of the deficit precludes playing 'small ball'. There is lots to cut. Excising a program, however, disrupts a patron-client relationship between an elected official and an organized constituency. Manufacturing and maintaining such relationships is the Democratic Party's raison d'etre.

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