Tag: Constitutional law

The Imperial Presidency, Reloaded

Let’s imagine the following situation:

In 2012, Mitt Romney wins the election. He tries to repeal Obamacare but the Democratic Senate won’t even take it up. He then tries to pass a bill reforming the law, but the Senate rejects him again. He then proceeds to, by executive order:

  • Delay the minimum requirements of the insurance policies until after the midterm election.
  • Change the date of compliance for the employer mandate and entertain the possibility of delaying it until after his first term.
  • Ignore a Congressional law requiring Congressional members and staff members to get insurance through the exchanges.
  • Then imagine he did other things like use waivers to cancel out parts of Race to the Top, tell the DOJ to not enforce laws he disagreed with, made wholesale changes to immigration, told the EPA to ignore greenhouse gas emissions.

    What do you think the Democratic response would be? I guarantee you it would be a lot more vocal than it has been as Barack Obama has done all this and more.

    Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.

    Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.

    The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.

    This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.

    James Madison fashioned a government of three bodies locked in a synchronous orbit by their countervailing powers. The system of separation of powers was not created to protect the authority of each branch for its own sake. Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.

    That’s Jonathan Turley, by the way, who is pretty liberal and agrees with a lot of the President’s policies. But he see what so many people don’t: the means matters. Even if you think everything Obama is doing is wise and noble, giving the President this kind of unfettered authority is dangerous to our liberty and to the Republic.

    (Defenders of the President like to point out that he has signed fewer executive orders than his predecessors and is on pace to pass the fewest per day since Grover Cleveland. This analysis is a bit problematic since Obama had a supermajority Congress for two years and didn’t need to rule by executive order. It’s also not clear to me that all executive orders are equal. One rewriting a healthcare law is obviously more extensive than one declaring National Turnip Day or putting in place a law that Congress will soon pass. Finally, much of what he is doing is not be executive order, but by other means. Congress left large parts of the Dodd-Frank and PPACA bills open to the executive’s decisions. So it’s a fair point, but one that needs to be unpacked a bit more since the numbers are not everything.)

    Look, I’m not naive. If Romney were President and acting this way, the Democrats would be screaming but I’m sure many Republicans and conservatives would be singing his praises, saying it doesn’t matter how Obamacare is stopped as long as it is stopped. But one side’s partisan bullshit does not justify the others’. Barack Obama is President and he has been given and is taking enormous amounts of power generally reserved for the legislature.

    This is something that we should all be worried about.

    The Court in Recess

    Yesterday, the DC Court struck down several of President Obama’s recess appointments:

    In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

    The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

    Recess appointments are intended for when Congress is out of session and there is a dire need. They are not intended to bypass the Congress, even when said Congress are acting like idiots and refusing to do their Constitutional duty. I commented on this a year ago. While chastising the Republicans for refusing to have hearing on necessary appointments, I said:

    All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

    All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

    Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.

    I am nervous about the potential consequences of this decision (actions taken by recess appointees could be ruled invalid, creating complete legal chaos). I also suspect this will go the Supreme Court before it’s decided once and for all (the 11th Circuit previously upheld Bush’s recess appointments). It basically removes the President’s power to make recess appointments since Congress is basically always in at least pro forma session these days. But it seems like the Courts are going to force our legislators and our President to act like adults and actually go through the Constitutional process that is their obligation and duty.

    The Left Loses it on SCOTUS

    Imagine the most bizarre rant you’ve ever heard about “judicial activism”. Imagine it being delivered by Rush Limbaugh and Bill O’Reilly simultaneously while drunk. Imagine them delivering it in Esperanto, a language they don’t know. You will still not reach a thousandth of the anger and spittle and incoherence being spewed out by the Left Wing commentariat over the possibility that the Supreme Court will overturn Obamacare. And remember, this is just days after saying the lawsuits were frivolous, stupid and a waste of time and there was no way the Court would even consider overturning the mandate.

    Here is Paul Krugman in a bizarre rant lurching from one topic to another, saying “it became clear that several of the justices, and possibly a majority, are political creatures pure and simple, willing to embrace any argument, no matter how absurd, that serves the interests of Team Republican.” This from a hearing in which in which the Solicitor General did such a horrible job, the liberal bench started to make his arguments for him. Jon Walker, in a more coherent vein, predicts that Obama would simply defy the Court. Andrew Koppelman has a bizarre comparison of Obamacare to a 1918 decision on child labor. David Dow says we should impeach the court if they rule against it (and you think the country is divided now). Dow, incidentally, is the author of a book praising judicial activism. And here is Maureen Dowd, ranting about how liberals focus on process while conservatives focus on results in and article that … concentrates on the results she wants rather than the process. And to cap it all off, you had the President himself calling for judicial restraint.

    All of these proclamations follow the same pattern: How dare the Supreme Court even consider overturning this law. If they do, it will be because they are partisan hacks. It will permanently maim the institution.

    This is such sanctimonious hypocritical bullshit that I don’t even think they believe it (indeed, the Fifth Circuit asked the Administration to clarify that they believe in judicial review and they did). I don’t recall such outcries over Kelo or Roe or Griswald, all of which set new precedents for federal power. I don’t recall them screaming like this over Boumediene, which limited President Bush’s power. But suddenly, when it looks the Court may overturn their sacred cow, the Courts are supposed to be restrained? Please.

    (A few have gotten in some digs at SCOTUS’s bizzarre 5-4 decision allowing strip searches for any arrest. They have a point; but it’s not relevant to the Obamacare case. And they’d be silent on it if they didn’t think they could somehow link it to Obamacare. After all, they’ve been silent every other time the Court has eroded the fourth amendment.)

    The claim that the Court should not overturn a piece of legislation passed by Congress is simply ridiculous. That’s what the courts are for. If Congress outlawed abortion, I severely doubt anyone on the Left would beg the Courts to not, in the President’s words, take the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” They’d be screaming for the courts to overturn the law.

    Let’s also take a step back and consider the strange idea these people have of “democracy”. If the US were a democracy — and thankfully we’re not — what would matter most is that the majority of the American people oppose the law. If we are a constitutional Republic, which we thankfully are, what matters is whether this law is compliant with the rules that we laid down delineating what our federal government can and can not do. But the Left is going for a very bizarre model — that legislation should be ultimately judged by whether the Democrats managed to wheedle 60 votes out of the Senate. That’s not democracy. And it certainly isn’t a constitutional republic. It’s floundering around, looking for any sort of justification for why a law should stand.

    The thing is, all of these arguments are bullshit. Every word of the articles linked above is garbage and the writers know it. They are using these weak soulless arguments because they daren’t use the one that is really motivating them. They just can’t admit that something they have wanted for fifty years — semi-universal healthcare — may not be Constitutional, at least not the way it was implemented. They were so elated when Obamacare passed that the idea of losing it makes them, well, lose it. Moreover, they despise the idea that the Court may act to limit the government’s power. When the Court has extended the government’s power, they have never objected. But the idea that the Court can say, “Hey, you’re not allowed to do this” fills them with rage. They can not tolerate the notion of a federal government that is limited in its powers.

    You are going to hear a lot more of this if the Court indeed overturns Obamacare. It won’t matter that they went to far or erred in how they constructed the law. It won’t matter that this was pretty much set up for any reasonable Court to take issue with. No, what will matter is the eeevil Scalia has taken away Obama’s signature achievement.

    The last few days have destroyed the notion that the Left Wing is entirely comprised of reasonable cool-headed people who make arguments and consider all sides. The above articles, written by some of the most popular liberal writers, are no different than the worst anti-judiciary rants of Newt Gingrich. They are no more coherent than Michael Savage on a bad day. It took only the possibility of an overturn for the facade to crumble and for the petty, partisan individuals to be revealed.

    If you thought the Republicans were crazy, just wait until this shit hits the fan.

    Update: One other thing. I can’t help but think that some of this rage is misdirected anger at the Democrats. The Democrats made two fatal mistakes in constructing Obamacare. First, they put the mandate in as a mandate, not a tax. As a tax on the uninsured, it might have passed the Court. But they wanted to pretend they weren’t raising taxes. They are now trying to retroactively pretend this was a tax hike, but the law says otherwise.

    The second mistake, which was really amateur, was not including severability in the law, so that striking down one part would not affect the others. Almost all sweeping legislation is severable precisely to insulate it from the Courts. If the law was severable, striking down the mandate would pin the Republicans in a corner where they either had to support a mandate or face a situation where people could wait until they were sick to get insurance.

    You want to talk about partisan hacks, Mr. Krugman? Try a man who blames the other party for the failing of his own.

    Recess Time

    Barack Obama has just made a recess appointment to the Consumer Financial Protection Bureau. He’a also about to make appointments to the National Labor Relations Board. It’s fairly standard for Presidents to make recess appointments. And under Bush, it became standard when the Democrats obstructed appointments to open positions. There’s only one problem: the Senate is not in recess.

    Congressional Republicans were furious Wednesday after President Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, arguing the move was unconstitutional because the Senate has met every three or four days over the holiday period and therefore was not on a recess.

    “This is an extraordinary and entirely unprecedented power grab by President Obama,” complained House Speaker John Boehner, R-Ohio, in a statement, saying it “would have a devastating effect on the checks and balances that are enshrined in our constitution.”

    “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” said Senate Minority Leader Mitch McConnell, R-Kentucky.

    A few caveats here. First, the Senate is only sort of in session. It’s mainly pro forma, pretending to be open precisely to prevent recess appointments. Second, the Republicans have been acting like world class twerps on this matter. They aren’t opposed to Cordray, who is qualified (as was Warren). They are opposed to anyone being appointed to head the CFPB. And their opposition to the NLRB has a similar motivation, since that board — a board authorized by law — is one chair away from no longer being able to legally function. And the NLRB nominees are qualified (one is a Republican). This isn’t just standard filibustering of a controversial candidate. That would be bad enough. This is backdoor effort to disable two agencies that are supposed to exist, no matter how much we might not like them.

    I said it when Bush was President; I’ve said it several times since Obama became President: elections have consequences. The Senate approval process is supposed to be a process, not a roadblock used to disable parts of the government. Qualified people should be appointed to positions for which they have been nominated, no matter how much we don’t like the positions or them.

    All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

    All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

    Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.

    On The Night Liberty Died, I Held Her Hand…..

    This is tangentially about the SCOTUS hearing on ObamaCare that’s coming up in the first quarter of next year, but it’s not the crux of the subject I wish to comment on.

    On March 20 – 22 of last year, I was in Washington D.C. for the vote to pass the health care bill. I had heard a few people suggest a gathering of some sort. Bachmann and some Tea Party notables mostly. For me it was different though. It wasn’t at anyone’s behest that I went, it was an irresistible draw. Think: Richard Dreyfuss in “Close Encounters of the Third Kind,” as he, along with all the others who had been affected by some extraterrestrial force, somehow knew that their presence was required at Devil’s Tower in Wyoming, and nothing was going to stop them from getting there. I woke up on Friday, March 19th, and told my wife I had to go. She got it, and gave me her blessing (and started making food that would keep in a cooler to try to save money – I was unemployed at the time).

    I have no idea if the old regulars here at Right Thinking had any fellow members who went to D.C. that weekend, who could provide you with a first-hand account of the event, but I do know that I was either the only one, or one of only a couple who went, on the other sites I frequented at the time. As I hear the punditry about the upcoming SCOTUS challenge, I keep getting a familiar feeling in the pit of my stomach that many commentators just aren’t/weren’t getting what this was all about. Which Justices are going to recuse themselves, will SCOTUS uphold or overturn or some compromise in-between, will certain politicians’ careers rise or fall on the outcome of the case……blah blah.

    It is my firm belief that ObamaCare goes well beyond a simple debate over the finer points of constitutional law. It’s about what force of nature will triumph, the natural yearning of humans for freedom, or the raw evil of despotism and tyranny. While it is my belief that if America falls to the latter, so too will follow the entire world, that belief doesn’t really influence my committment to dedicate what remains of my life to preserving the former. The forces of the latter are global in nature, while the mindset that created the former is still, generally-speaking, only found here in America as a collective force to be reckoned with, diminished and weaker than needed though that force may be.

    On the day I got back in town from the health care vote, I posted my take on where we stood as a country at Survivalist Forums, and you could see the epiphany that occurred within me that the above articulates in its first incarnation in that post. After giving my take, I summarized it thusly, which I used a part of to title this post:

    “That’s why I went. I watched the grandmother I was raised with die. I watched my favorite aunt die. I watched my mother die. I held all of their hands in their final death throes and witnessed their final breaths. Last night I did the same thing with American Liberty. And I did it with a family of about 2,000 or 3,000 Brother & Sister Patriots who stayed till the end. Last night wasn’t about politics. It was about the death of American Liberty.”

    I feel stronger about it now than I did then, some 20 months hence. This SCOTUS ruling will tell us, The People, if the rule of law, wholly inspired by the aforementioned natural yearning for human freedom, still holds any sway against the forces of despotism. And even if it does and the ruling goes against ObamaCare, will this chapter in American jurisprudence be enough to wake The People up to the fact that the fight is never-ending? Or will they give a collective sigh, saying to their collective self, “Shwew! That was close!” and go on about their work-a-daddy lives taking for granted the freedoms and immunities from government intrusion that court victories over highly controversial, important issues tend to mask as even being threatened? Are we collectively peering through the eye-holes of that mask? I think not.

    Win or lose at SCOTUS on ObamaCare, it, in and of itself, is not the threat to our liberties that many describe it as. Apathy, complacency, and lack of civic participation are much more deadly enemies to freedom, that allow the rich environment in which travesties to liberty such as ObamaCare, the Patriot Act, and myriad examples of constitutional usurpations that have riddled this country for decades without so much as a whimper from the masses to proliferate, than any one piece of legislation even has the potential to be, no matter how egregious against liberty its provisions are.

    So that’s what I felt compelled to say. Of course I hope ObamaCare is overturned, but I implore my readers not to take it as the end-all, be-all of victories over tyranny if it is. The American Revolution started in 1776, but it is a never-ending struggle, and neither the ratification of the Constitution itself, nor the passage, or upholding, or overturning of ObamaCare, can or will portend its conclusion. The precepts of the American Revolution can only be maintained and nurtured, never concluded. But it can be defeated. One entity can prevent its defeat; We, The People. Your participation is required.


    The Latest Constitutional Laugher

    Oh, boy. You know, libs, you probably should avoid diving into arguments about the Constitution. Because it always becomes clear, almost immediately, that you’re not playing fair:

    For a group that claims to revere the Constitution, the Tea Party appears pretty determined to deal it a death by a thousand cuts. Its latest attack involves a nasty little piece of constitutional revisionism, complete with a “How can you be against that?” title: the “Balanced Budget Amendment.”

    Amendment, Mr. Kendall and Ms. Lithwick, is neither an attack on the Constitution nor revisionism. It is the very process by which the Constitution is supposed to be modified and has been 17 times. If you want to talk about “revisionism”, you can start with the ridiculous living Constitution BS that says we can interpret the Constitution however the hell we want to. Few Amendments, no matter how ridiculous they might be, are an attack on the Constitution. It’s not like they’re talking about repealing Free Speech.

    But let’s go on:

    First, a little context. Shortly after the November 2010 election, Public Opinion Strategies, a Republican polling firm, released a poll showing that 80 percent of Republican voters wanted America to “return to the Constitution.” That was funny, since so many Tea Party candidates also demanded changes to important parts of the Constitution, supporting either outright repeal or odd mutations of the 14th, 16th, and 17th Amendments. Respectively, these amendments, among other things, guarantee citizenship to everyone born in this country; allow the progressive taxation of incomes to fund the government; and allow “the people” of each state, as opposed to its legislature, to select senators.

    See, here’s the thing: they propose to change those parts of the Constitution. They didn’t propose — as many libs often have — ignoring them. I would probably oppose those repeals. But these are not attacks on the Constitution any more than the 21st Amendment was. They are, in fact, what the Constitution is all about — establishing clear guidelines which the government must obey.

    That’s what returning to the Constitution means. It means we go back to issues being settled in our defining documents, not by judicial fiat or legislative whimsy. And if the Tea Party loses, they lose. They’re not going to fail to repeal the 16th Amendment and then not pay their taxes, this being the equivalent of what the Left did to the Second Amendment for sixty years.

    A balanced budget amendment sounds like a great idea—until you read a little U.S. history and count all the times America spent more in a fiscal year than it raised in taxes and why that was necessary for our very survival.

    Yes, the Amendment accounts for this. What it stops is running up massive debt at a time when we aren’t fighting for our very survival. In the end, I suspect a BBA will end up useless as Congress will find reasons we are fighting for our very survival in order to avoid making tough choices. If it’s not the War on Terror, it will be healthcare.

    But I digress. They move on to attack the supermajority tax hike requirement. We can disagree on this, but they try to pretend that this would be against what the Founders wanted. Before we get too far into the weeds on that, however, I should note that it doesn’t really matter what the Founders wanted and their desires only matter to the cartoon version of “Tea Partiers” and “constructionists” that Lithwick and Kendall have constructed. Our Founders also wanted slavery to stay legal and Senators to be selected by the states. They would be appalled by almost everything these writers want, so turning to them is a bit bizarre. What matters is what the Constitution says now, in black and white, not what it might have said 200 years ago.

    But, let’s let them have their say:

    The Constitution’s broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress’s power to borrow and tax. These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans. Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.

    True. But they also feared a strong central government and tried to strike a balance by giving it enough power to protect the country but not so much that it could run roughshod over the states and the people. The Lee Amendment may be too strong, but it’s heart is in the right place. Since our legislators refuse to recognize the statutory limits on federal power, we’ll place financial ones on them. The main reason there has been no balanced budget amendment for 200 years is because it was only recently that we realized some 537 sons of bitches would run this country into the ground, given half a chance.

    Our government is in no danger, even if the Lee Amendment is passed, of reverting to the weak Articles of Confederation model. To make that comparison is to trivialize the debate. A statutory limit of federal spending to 18% of GDP may be unwise, but it is not going to cripple the Republic. Get a grip.

    Moreover, in creating a supermajority requirement, the sponsors of the Balanced Budget Amendment do violence to another central tenet of the framer’s project: The need for majority rule. The Founders made majority rule the default rule for our democratic Constitution.

    Ridiculous. The Founding Fathers favored majority rule — providing that majority was comprised of male landowners. Moreover, they specifically limited majority rule by putting in place of Bill of Rights and Enumerated Powers to limit what the majority could do. They also put critical parts of our government — over-riding vetoes, ratifying treaties, amending and impeaching — beyond a mere majority and into the hands of a supermajority. And, as noted, they opposed the popular election of Senators. They were not fans of democracy; they created a Constitutional Republic with interlocking pieces designed to limit its power.

    The thing that really bugs me about this article is the tone. It’s perfectly easy to make a case against the Lee Amendment without adopting a sneering condescending tone toward the Tea Party and getting tangled up in arguments about what George Washington might have thought about it. The main points in opposition are:

    1) An 18% of GDP limit on the federal is arbitrary and might be impossible to achieve given our commitments to the military and seniors.

    2) The 2/3 requirement essentially gives 1/3 of Congress veto power over fiscal policy. Keep this in mind: a 2/3 majority requirement would probably have prevented the Reagan tax cuts and certainly the Bush tax cuts as both, by law, would have to be scored as increasing the deficit (as indeed, the Bush cuts did; unless you think our economy would have shrunk by about 20% between 2001 and 2008 without the tax cuts).

    3) Section 4, which only allows tax increase on a 2/3 supermajority vote, is way too broad and inclusive. It could, for example, make it impossible to eliminate the tax expenditures associated with ethanol and Obamacare. Scoring changes in the tax code is tricky and I suspect the biggest unintended consequences of this would be to make fundamental tax reform impossible.

    I don’t agree with those arguments entirely, but those are the legitimate ones. And I made them without mocking the Tea Partiers or throwing out condescending bullshit about 18th century politices.

    To be honest, the Lee Amendment does go too far for me as well. The version proposed in 1995 was just fine (see here for the differences) and I suspect could be passed. Congress might routinely over-ride it but at least it would be in.

    IF, that is, a balanced budget is what the GOP really wants. I’ve yet to be convinced that this is the case.


    Time Magazine has a front page article on the Constitution and the debate over it that is so hackneyed, so stupid, so factually challenged, that it must have been written by a summer intern snorting coke off the asses of drunken … oh, fuck, it was the Managing Editor? And he just sent two years at the National Constitution Center? What we he doing there, licking hallucinogens off the tiles? Even the guy who swept the floors would have better grasp of the Constitution than this:

    Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: “The Constitution was written explicitly for one purpose — to restrain the federal government.” Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before. (See portraits of the Tea Party movement.)

    If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

    Honestly? If a student turned this into class, I’d fail them. The Constitution absolutely and most definitely limits the powers of the federal government. It spells out specific powers that it has, lays out rights it can not violate in using those powers and closes with: “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.” I guess the guys at Time are too wise and erudite to be bound by declarative English sentences. But to most of us, the meaning is all too clear.

    A full deconstruction of Time’s nonsense can be found here. Stengel tries to argue his way to supporting Obama’s actions in Libya, calls on Obama to unilaterally raise the debt ceiling, justifies Obamacare and argues for getting rid of birthright citizenship. The Obamacare argument is particularly bad as he argue that all medicine counts as interstate commerce because doctors buy their stethoscopes out of state.


    What this is really all about is the Lazy Liberal Man’s Way of Amending the Constitution. As I have argued before, people use “living Constitution” arguments because they are too lazy or their views too unpopular to go through the process specifically designed to change and update the Constitution: the amendment process. The abolitionists, the suffragettes, the early 20th-century progressives, the civil rights leaders — these people did what was required to change our country. It took decades and they had to fight like hell. But the result was a clear, decisive and absolute victory that changed our country for the better (well, mostly, prohibition and income tax were big mistakes).

    Living constitution people want to go through the backdoor, to shove their ideas into the Constitution purely by dint of their moral and intellectual superiority. Persuading a supermajority of the country is simply beneath them. It’s laziness and condescension, pure and simple.

    And the danger of “living Constitution” arguments can not really be overstated. Once you’ve bought into the idea that our founding document is just a list of suggestions, everything is on the table. Even of our freedom of speech founders. The beauty of being literal about the Constitution is that everyone knows what the rules are. The law is no longer arbitrary or subject to the whims of legislatures and prosecutors. When the Constitution says we have a right to free speech and we take that as literally as possible, we know we’re free. In a living Constitution world, we can suddenly and arbitrarily find ourselves in prison because someone decided you can’t call the President a dumbass.

    Fareed Zakaria has a smarter article on this subject. My read is that he’s calling for either a Constitutional convention or a series of amendments. I would not oppose either although I prefer amending to any replacing.

    As much as I agree with the methodology, I disagree with Fareed’s suggested changes. He suggests abolishing the electoral college. I oppose this because the electoral college forces candidates to build a national consensus rather than running up huge majorities among their base. And it’s really only made a difference twice in American history, so I really don’t see the crushing need to change it now.

    He also suggests changing the Senate:

    The structure of the Senate is even more undemocratic, with Wisconsin’s six million inhabitants getting the same representation in the Senate as California’s 36 million people. That’s not exactly one man, one vote.

    It’s not intended to be. The senators are supposed to represent the states, not the people. If you proportion the senators by population, what is the point of the Senate? It becomes just a second House with bigger egos and longer speeches. Supporters of changing the Senate often resort to ridiculous arguments, trying to find the minimum number of Senators who could stop a piece of legislation and claiming this lets 1/3 of the country veto the wishes of the other 2/3. This argument came up a lot with Obamacare. But it’s a bogus argument since (a) even with Obamacare, the national consensus was against it; (b) we’re not a democracy.

    Anyway, these two articles got me thinking about what kind of Constitutional Amendments I would like to see, assuming our political class could be bothered to invest the energy. Use the comments to suggest your own, but here’s a few I’d go for:

    Balanced Budget Amendment: The GOP almost got this in 1995 and I wish it would come up again. I’d prefer one with a supermajority requirement on tax hikes and maybe an outlet in case of war or national emergency. But it’s clear that someone’s hand has to be forced on this.

    Right to Privacy Amendment: Phrased like so: “The right of the people to engage in private activity shall only be infringed when Congress can demonstrate a compelling public need.” This would simply clarify the 9th and 10th Amendments, shifting the null hypothesis to that of freedom. Today, we have to show that a bad law violates our fundamental freedom. Under this amendment, we would be assumed to be fundamentally free and Congress would have to justify breaking that freedom.

    Term Limits: This is one of the more controversial. The usual counter-arguments, however, don’t carry much weight with me. Yes, the people can vote out our Congressmen. However, the system has been so rigged through subsidies of incumbents and gerrymandering that it’s extremely difficult. And the argument that we should have an experienced Congress just crosses me as bizarre. The last ten years have seen some of the most experienced Congresses in history drive the country into a brick wall. An experienced legislator is like an experienced thief; we don’t really need them.

    When I lived in San Antonio, we had term limits on the city council. It was awesome. They were much more conservative than any city council I’d ever seen. Conservative in the “get off my lawn sense” of keeping taxes law, government small and not subsidizing stupid “projects”. What term limits are is corruption limits.

    Plain English Amendment: I ripped this one off of Heinlein. It’s a simple fact that many of our laws are so vague and written in such opaque lawyerese, that people can violate the law without knowing it. Hell, the fucking IRS doesn’t know our tax code. To me, this makes the laws of questionable validity. No one would tolerate it if laws were written in a secret code that no one understood and you would only know if you broke them by being jailed. Yet this is effectively what we have. I would love to see an amendment that would require laws be comprehensible to the citizens to whom they apply. If a hundred college graduates read the law and only about three understand what it says, that law needs to go back to the word processor.

    There are other amendments floating around there that I am vehemently opposed to. You can probably guess them: the flag burning amendment, the anti-gay marriage amendment, amendments to enfranchise criminals or alter the electoral college or senate composition, an amendment to repeal birthright citizenship.

    Anyway, that’s my … Jesus, how long did this post get? … my dollar and fifty three cents.