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.
President Obama is probably just trying to work the refs in his comments suggesting he is "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Since Progressives have long praised the Court for taking away from the people the right to make law on may subjects, the comment might seem striking. But I actually think it is entirely consistent with the Progressive understanding of the "living constitution." Whatever furthers the Progressive agenda is good, and whatever blocks it is bad. Living is only supposed to be in the direction of "progress." If the Court strikes down laws Progressives like, they will decide that judicial review is passe.
But what if the country is divided about what is "forward" in history? And what if some (many, I suspect) Americans are not living in an Hegelian world in which History has direction?
More evidence that a living constitution is impossible absent a consensus about what's next.
P.S. Obama's criticism of Paul Ryan for "thinly veiled Social Darwinism" draws out a related point. Uncle Barry's moral ideas are from fifty years ago. His Progressivism is trapped in the past. His living constitution is the prisoner of 20th century Progressivism.
However, sober observers remind that the road to democracy is long and winding for Burma.Nobel Peace Prize laureate Aung San Suu Kyi's party, the National League for Democracy, is on track to win at least 43 of the 44 contested seats in Burma's historic parliamentary by-elections.
Burma remains one of the most benighted lands on Earth, but any erosion of the ruling junta's power is a good thing. These electoral successes, while meager, will hopefully lead to a continuing democratic movement.One by-elections, in other words, will not plant the seed for Asia's version of Nelson Mandela's Truth and Reconciliation Commission. If this be a revolution, it will not be in the mold of South Africa. Certainly not of the Philippines, Indonesia, or the Czech Republic. But in a society heavily into astrology and karma, heaven help the junta, neither will it be of the Arab Spring.
Technically, at issue is a quarrel between the European Commission (EC) and the government of Hungary over some obscure laws on judges' retirement ages, ombudsman roles and whether or not Central Bankers ought to swear an oath to the constitution of the state they serve. In reality, the conflict is over fundamental issues such as who decides what European values are, from whence does democratic legitimacy derive in the EU and should a democratically-elected national legislature or the European bureaucracy ultimately decide what legislation is legitimate and what's not.
. . .It is an irony worth noting, that the democratically-elected government of Hungary is being judged by the unelected EC bureaucratic mandarins, who among other recent deeds, denied a democratic referendum to the Greeks and forced on them and the Italians unelected governments, to say nothing of imposing on the Europeans thousands of rules and regulations on which no one has been allowed to vote.The real viciousness of this conflict, however, goes clearly beyond economic policy and political reform and cannot be explained except by realizing that what the Hungarians have done is to commit the mortal sin of challenging the prevailing political culture of the European Union establishment today and thus the very legitimacy of its leftist, multi-cultural Weltanschaung. Much more unacceptable than [Hungary]'s economic policies, to its adversaries, are its political philosophy as exemplified by the new constitution's insistence that Hungary is a Christian nation and proud of it, that marriage is between a man and a woman and that life begins at conception. Commonsense propositions to most Europeans as these are, they make the politically correct EU elites go truly unhinged.