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Loose Construction, Strict Construction, and Deconstruction

Richard Epstein's latest post gives strength to my post the other day, which argued that Progressives view the constitution the way a passenger on a plane sees the country from 30,000 feet--everything is homogenized into one, unified landscape.  Moreover, he notes that that is the only way to justify the modern view of the commerce clause.

Epstein points to Charles Fried as a case in point. (Fried may have served in the Reagan administration, but, as Epstein notes, he has bought the Progressive re-writing of the constitution. Fried also supported Obama for President.)  Fried insists that there is no practical limit to the federal government's power under the commerce clause.  As Epstein points out, Fried claims  "that the scope of the commerce power was settled as early as 1824 in Gibbons v. Ogden, which he does not refer to by name. Of Gibbons, Fried explains, "If something is within the power of Congress, Congress may exercise that power to its fullest extent." 

On the contrary, Epstein notes, notes that Progressives like to cite Chief Marshall's opinion in Gibbons v. Ogden to justify a very expansive reading of the commerce clause, "in Gibbons, Chief Justice Marshall wrote without embarrassment that "the completely interior traffic of a State" was beyond the power of commerce to regulate. A fortiori, the regulation of manufacture, agriculture, mining, or health care was far outside the scope of Congressional regulation." 

Epstein goes on to note that Chief Justice Marshall very clearly indicated that the federal government has no authority, at least under the commerce clause, to regulate intra-state commerce--of which there was a good deal: "in Gibbons, Chief Justice Marshall wrote without embarrassment that "the completely interior traffic of a State" was beyond the power of commerce to regulate. A fortiori, the regulation of manufacture, agriculture, mining, or health care was far outside the scope of Congressional regulation."

In the founding era, the argument was between loose construction (which the Federalist Party supported) and strict construction (which the Republican Party supported). Both sides agreed that there were real limits to the federal government's power.  They disagreed about whether there were implied powers at all.  Nowadays, the argument not about whether there are implied powers, but, rather, about whether there is anything that cannot be turned into an implied power.  If one may discover some implied powers, may one be justified in discovering any conceivable implied power?  Progressives seem to think that the answer is yes--so long as History or Progress demands it.

In other words, the argument today is between loose construction and deconstruction, not between strict and loose construction of the Constitution.

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Discussions - 1 Comment

Good post. No less important is the meaning of the word "regulate," which has come to mean considerably more than mere regulation with. e.g., Wickard v. Filburn. To ensure that commerce flows across state lines without impediment is one thing, forcing people to participate in such commerce is something else entirely. That is beyond the scope of the Constitution. That is where the debate is now, which you make clear with the "loose construction and deconstruction" terminology.

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