Monday, April 02, 2012


"Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions."
-James Madison

Over at the Volokh Conspiracy, Jonathan Adler noted the trend on the left to be surprised, shocked, and unready for how weak the "obamacare" arguments are and how likely it is to be thrown out as unconstitutional. Adler points out that not just the average leftist, but supposed "elites" in the left's legal community, such as professors and pundits, seemed totally unaware of the arguments against constitutionality in the bill.

Adler linked the piece by Peter Suderman arguing that the left is on average much more ignorant of the right's positions and arguments than the right is of the left's, which I find supported by personal experience and reading online. However, I think there's something more fundamental at play here, something that goes beyond isolation from the opposition or even presumption of malice (another far too common position on the left).

There is a basic divide between the left and the right in how they understand the US Constitution and its purpose. And I'm not talking about originalism vs the "living" constitution, I'm talking about its very foundational principles.

This came up very starkly when the Government Health Insurance Takeover Act was being debated in congress. Various right-leaning organizations went and asked congressmen what they thought the constitutional basis was for this bill and their answers went like this (courtesy David Bernstein):
  • Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
  • Rep. Stark responded, “the federal government can do most anything in this country.”
  • Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
  • Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
  • Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
  • Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
  • Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”
Then-speaker Nancy Pelosi just laughed. And the reason this happened is that the left has a special sort of understanding about the US Constitution which is all too common, I fear.

They think the US Constitution allows the federal government to do anything except what it specifically prohibits. In other words, there are no restrictions on the federal government except where the constitution specifically says "you cannot do this." That's why the left loves the 1st amendment and seems able only to cite it and the 14th amendments, because they specifically prohibit certain actions.

So when asked where the constitution allows congress to pass a federal health insurance bill, they are confused; the question doesn't fit any categories they understand. It makes no sense to them - the constitution allows everything unless specifically banned.

On the other hand, the right - and the founding fathers who wrote and defended the constitution see things a bit differently. The US Constitution in a conservative perspective allows nothing except what it specifically says the government can do. In other words, if the constitution doesn't specifically state some basis for a bill, it is not permissible for the federal government to pass that bill. It is illegal and has no meaning or power.

That is literally what Supreme Court Justice John Marshall said:
The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and the courts, as well as other departments, are bound by that instrument.
If a law is unconstitutional, its meaningless and irrelevant. Its not even law.

This might seem strange or radical to modern ears, but it is perfectly consistent with the writings of both the federalist and anti-federalist papers and all of the founding fathers. There was no dissent or confusion on this until very recently in any court or legislature.

The United States was founded on a very basic principle: that all power belongs to the citizens of the United States without exception. This is what the phrase "government of the people, by the people, and for the people" means. The people of the United States allow governments to exercise some of this power in very limited ways through elected representatives.

In other words, the US constitution isn't a document outlining many of the ways the federal government can act, but a specific document detailing exactly the few limited ways the federal government can act. This principle is called "enumeration" and it simply means the government cannot do anything except what it is allowed by the people. Anything it tries beyond that is simply null and void.

Why didn't the founding fathers make that more clear? Well they did through reams of papers written at the time, loads of arguments made to that position, and in the text of the 9th and 10th amendments, which were specifically added at the request of the anti-federalists to make sure it was clear, something Madison thought was unnecessary.

This distinction in basic understanding of the US Constitution is why legal scholars on the left are making arguments from precedent (something the US Supreme Court is not bound by) and various minutae from previous decisions. Because they see absolutely no constitutional violation in this bill; it can't violate the constitution, because it doesn't do anything specifically prohibited.

And until the left can figure out where they're wrong on this, left and right are going to eternally be like two trains running parallel to each other on tracks, never meeting.


Anonymous said...

Both the Constitution and the Bible were written so that they could be understood by anyone with reasonable intelligence and curiosity. In the case of both of those documents, over the years 'specialists' seeking power have interposed themselves between the document and its intended audience. In this, they assert the right to decide what the text really means.
It is important that people come to realize that laws running contrary to the clear language of the Constitution are void. A court approving such laws is engaged in a power exercise, not a legal one.
A government which simply uses power to do what it wants is a tyranny. It may be able to force obedience, but it has no moral authority.

Texas Shooter said...

Pelosi did more than just laugh the issue of Constitutionality off: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: “Are you serious? Are you serious?" “Yes, yes I am."

Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a "serious question."

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”