Strengthening Constitutional Self-Government

No Left Turns


Founding Documents Bill Signed into Law

I went down to Columbus on Monday for the Governor's ceremonial signing of Senate Bill 165, the "Founding Documents Bill."  I testified on behalf of this bill a few months ago.  State Senator Larry Obhof (R-Montville Township) led the charge on behalf of the bill that is now law. The state's model curricula will now include the Declaration of Independence; the United States Constitution, with an emphasis on the Bill of Rights; the Northwest Ordinance; and the Ohio Constitution.  The curricula will include reading the primary documents in their historical context.  As Sen. Obhof said, this law will help "ensure that all Ohioans are adequately prepared for their role in democratic self-governance."

Categories > Education


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.

Categories > Courts


The Constitution Liveth (And it Keeps on Living)

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.

Categories > Courts


Our Constitutional Law Professor President

President Obama edified the country today when he told us that "Ultimately, I'm 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."

If he wasn't a former constitutional law professor, I would point out one could maybe find precedent for a law passed by a strong majority of a democratically elected Congress that was overturned by the Supreme Court. 
Categories > Politics

Foreign Affairs

Burmese Spring?

Limited elections in Burma have nearly unanimously rewarded the opposition democratic party and an iconic Burmese leader. According to Slate:

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.

However, sober observers remind that the road to democracy is long and winding for Burma.

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.

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.
Categories > Foreign Affairs


Deeply Shaken

I saw Howard Dean on Fox News Sunday.  He was saying that it would be a victory for the President if the Supreme Court Justices strike down the individual insurance purchase mandate and uphold the rest of Obamacare.  We've come a long way from when liberal commentators were assuring us that the legal case for Obamacare was a slam dunk.  Now we have Howard Dean pretty much begging the Supreme Court to uphold part of Obamacare and hoping he can spin the partial survival of the law into a political win.  Smugness has been replaced with panic.

The panic is premature.  I take it as a given that only Anthony Kennedy knows how he is going to vote on Obamacare.  And maybe not even he knows.  And even if he thinks he knows, he might change his mind.  I've been rereading Jan Crawford Greenburg's excellent  Supreme Conflict.  The book won't help you predict what Kennedy will do on the mandate, but it might make your confusion better informed.

From the oral arguments, Kennedy clearly seemed to think that the insurance purchase mandate was an unprecedented and fundamental expansion of federal power under the interstate commerce clause.  He was skeptical that the interstate commerce clause gave Congress the power to force citizens to contract with a private company to purchase a particular class of product.  He also seemed skeptical that, if the Supreme Court consented that Congress had this power in matters of health insurance, the power could then be cabined to only health insurance and not cell phones, broccoli, burial insurance, or whatever other product Congress imagined.  Every attempt by the Solicitor General to construct a "limiting principle" was quickly demolished.  This is possibly because neither the Solicitor General, nor the administration he represented, nor the congressional majorities who voted for the law believed that any such limiting principle was necessary.  The result was a group of badly thought out bad faith arguments that collapsed under questioning.  Before liberals get too upset with the Solicitor General, they should remember that he would have fared even worse if he had been more honest and argued something along the lines of "Hell yeah the Congress can mandate that Catholic Charities purchase aborted fetuses by the dozen as a way to reduce premiums for government-mandated abortion insurance.  The Supreme Court said so.  Where?  It was that case with the wheat or the weed, or the national bank.  I dunno."

So what is Kennedy going to do?  I think some of it will come down to Kennedy's self-image.  Greenburg quotes Kennedy as saying "I try to accommodate more of the precedents in a more case-by-case approach than does, say, Nino [Scalia] or Bill Brennan."  I think that Kennedy's self-image has some major reality problems when you look at his votes and opinions on the death penalty and social issues, but it is still his self-image.  If the conservative Supreme Court Justices (and especially the careful and prudent John Roberts) can convince Kennedy that striking down the Obamacare mandate does not mean striking down (even in part) New Deal-era precedents like Wickard, then Kennedy might vote to strike down the mandate. 

On the other hand, Greenburg writes that Kennedy "pays attention to the social and political fallout from the Court's work, and frequently winds up in the middle, looking for that elusive compromise position that will resolve the most divisive either-or cases."  Kennedy must know that, if he votes to strike down the mandate, he will be cursed by center-left dominated institutions to his grave and beyond.  So he might put aside his principles (to the extent he has any or understands those he thinks he has), and try to find a "compromise" that will maximally salvage his reputation with every side and maybe accommodate his principles a little too.  One can imagine Kennedy talking himself into a "compromise" where he votes to uphold the mandate and conservatives get a little eyewash about how Congress only has the power to impose purchase mandates on health insurance - until Obama appoints another Supreme Court Justice.  Heh, heh.

Liberals and conservatives each have plenty of reason to chew antacids until the Supreme Court announces its decision.     
Categories > Politics


Who Does the European Left Hate?

Not the Eurozone PIIGS who have plunged the EU into economic ruin. Not the former soviet bear who yet strives to embrace a sphere of oppression in Europe's backyard. Not the Islamic sponsors of terrorism vying for nuclear arms to trade on the global market. Rather, the EU - which is generally synonymous with the European left - has focused its ire on Hungary. As Alex Alexiev correctly explains:

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.
Categories > Progressivism