'Limited government' or hypocrisy?
By Fred Slocum
The Mankato Free Press
Fri Nov 05, 2010, 07:00 PM CDT
Fred Slocum is an Associate Professor of Political Science at Minnesota State University Mankato.
An Oct. 19 [Mankato] Free Press article urges a rigid, 19th-century school of constitutional interpretation, revived recently by the tea party. This school argues that the only powers the federal government has are those granted in Article I, Section 8, period.
Today’s political right deploys this view to insist that health care reform is unconstitutional, even though one federal judge has already upheld it under the Constitution’s Commerce Clause..[1] Don’t be seduced by the right’s claims to being the only faithful interpreters of the Constitution; they aren’t. And don’t be seduced, either, by the right’s appeals to “limited government” (a sham — the hypocrisy behind this is jaw-dropping).
First, the right wing steadfastly refuses to deal with the logical implications of their school of constitutional interpretation. If swallowed lock, stock and barrel, this view would render unconstitutional virtually every humane legislative act passed over the past 110 years: The ban on child labor, anti-monopoly laws, the minimum wage, the 40-hour work week, regulation of food and drugs, government recognition of workers’ right to join unions, workplace-safety laws, environmental-protection laws, Social Security, Medicare, the Civil Rights Act (1964) banning segregated public establishments and racial discrimination in employment.
None of these actions is mentioned in Article I, Section 8. The right’s reasoning: Therefore, every last one of these is unconstitutional — end of story, forevermore. The inescapable conclusion: The right wants to take a machete to over a century of humane laws.
(More here.)
TM comment: This is right on. The people who want an "originalist" interpretation of the constitution -- before the modern world evolved, with things like electricity, the Internet, and space travel -- usually forget that that the Constitution as written approved of slavery (Art.IV, Sec.2) and counted slaves as three-fifths of a person. Women could not vote, much less minorities, and the principal question being debated was how much property a white male needed to own to qualify for the vote. In the election of 1788, only 39,000 white men of property voted.
Is that what we want?
The so-called "originalists" and "strict constructionists" seldom follow their own philosophies when it is inconvenient, as when the "States Rights" proponents on the Supreme Court overruled the Florida Supreme Court to stop the 2000 recount and give the presidency to George W. Bush. Then, to complete the hypocrisy, they decreed that their decision should not be considered a precedent for future courts.
The Mankato Free Press
Fri Nov 05, 2010, 07:00 PM CDT
Fred Slocum is an Associate Professor of Political Science at Minnesota State University Mankato.
An Oct. 19 [Mankato] Free Press article urges a rigid, 19th-century school of constitutional interpretation, revived recently by the tea party. This school argues that the only powers the federal government has are those granted in Article I, Section 8, period.
Today’s political right deploys this view to insist that health care reform is unconstitutional, even though one federal judge has already upheld it under the Constitution’s Commerce Clause..[1] Don’t be seduced by the right’s claims to being the only faithful interpreters of the Constitution; they aren’t. And don’t be seduced, either, by the right’s appeals to “limited government” (a sham — the hypocrisy behind this is jaw-dropping).
First, the right wing steadfastly refuses to deal with the logical implications of their school of constitutional interpretation. If swallowed lock, stock and barrel, this view would render unconstitutional virtually every humane legislative act passed over the past 110 years: The ban on child labor, anti-monopoly laws, the minimum wage, the 40-hour work week, regulation of food and drugs, government recognition of workers’ right to join unions, workplace-safety laws, environmental-protection laws, Social Security, Medicare, the Civil Rights Act (1964) banning segregated public establishments and racial discrimination in employment.
None of these actions is mentioned in Article I, Section 8. The right’s reasoning: Therefore, every last one of these is unconstitutional — end of story, forevermore. The inescapable conclusion: The right wants to take a machete to over a century of humane laws.
(More here.)
TM comment: This is right on. The people who want an "originalist" interpretation of the constitution -- before the modern world evolved, with things like electricity, the Internet, and space travel -- usually forget that that the Constitution as written approved of slavery (Art.IV, Sec.2) and counted slaves as three-fifths of a person. Women could not vote, much less minorities, and the principal question being debated was how much property a white male needed to own to qualify for the vote. In the election of 1788, only 39,000 white men of property voted.
Is that what we want?
The so-called "originalists" and "strict constructionists" seldom follow their own philosophies when it is inconvenient, as when the "States Rights" proponents on the Supreme Court overruled the Florida Supreme Court to stop the 2000 recount and give the presidency to George W. Bush. Then, to complete the hypocrisy, they decreed that their decision should not be considered a precedent for future courts.
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PJD Comment: This is not right on. It is quite a stretch to make to claim that those of us who argue for State's Right and Limited Federal Government equate that with rescinding child labor laws or the Civil Rights Act. That's just hyperbole of the Keith Olbermann type.
The progressives in this country believe in a 'living Consitution' which is to say that the Constitution does not mean what the words actually say. The meaning can change literally overnight as circumstances dictate or as a political reading of it might dictate. This is what Tea Party Patriots are against - a government that feels it has absolutely no restriction on its power.
Let's take a look at the bankruptcy with Chrysler and GM in 2009. Secured creditors - who paid for their place in line in the event of a bankruptcy - were bullied by the government in to accepting a dimished security which put the unions ahead of the secured creditors for the assest GM and Chrysler wanted to reorganize. Because we have a 'living Constitution' should we be surprised that we also have a 'living bankruptcy' law, too? The action by the government in these bankruptcy proceedings was wholly unconstitutional, and yet barely a peep was heard.
The TARP program, the Cash For Clunkers and ObamaCare are unconstitutional as well. The government, under the commerce clause, is not entitled to enlist commerce with a carrot such as the Cash For Clunkers programs. As well, borrowing money to be used to invest in private banks and institutions is not under the purview of the Congress under either the taxation clause or the commerce clause. It was FDR who was first able to package government accumulation of power - and the complicit Supreme Court - which made several decisions which were completely incorrect - in to legislation that has allowed the Federal Gvernment to accumulate power for itself at the expense of the states. With ObamaCare, does the government, under the 'inter-state commerce clause' have the authority to tell me that I must purchase a product in order to retain legal citizenship status? That I must get up out of my chair and walk down to the local insurance broker within my own state and purchase a health insurance policy? If you can read that in the Constitution, then you are truly a progressive under the 'living Constitution' construct.
So, what the writer is telling us is that while he agrees with the 'living Constitution' philosophy that fits his motivation, if someone else has a different view of a 'living Constitution' that is more constructionist, well, we can't have that. Progressives opened the door on the 'living Constitution'. Don't be surprised when someone takes the reins of power and interprets the 'living Constitution' differently. It would be far better if we all agreed that the Constitution should be interpreted based on what is written in it rather than saying it says whatever we want it to say so we can get our agenda passed in to law.
It was Jefferson himself who said: "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in teh debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform the probable one in which it was passed". The Tea Party Patriots would agree.
Our country was founded on the principle that power belongs to the people and not the state. Individual freedom is being lost to idealists who seek to increase the power of government over the people.
Unfortunately, Republicans and Democrats share responsibility for undermining the rights of the individual. Dr. Slocum is for increased governement power and I for one, believe in the notion of "Life, liberty and the pursuit of happiness."
Tom - As my column makes clear, it's the right that sides with government power on social and moral issues,and the left that favors greater liberty. On economic issues, I favor some government power, not absolute power. I would not favor nationalizing industries, or Soviet style collectivized agriculture. I am a progressive, not a socialist and not a Communist.
Patrick - If you don't purchase insurance, you aren't stripped of your citizenship. That's as ridiculous a claim as the national Republican Party's effective claim that health-care reform would cause Republicans to be denied health care based on their political views (http://washingtonindependent.com/56844/obtained-the-rncs-health-care-survey).
Next, you claim we "say the Constitution does not mean what the words actually say." The Constitution nowhere says "Interpret me LITERALLY and I am RIGID and SET IN STONE for all time." It's right-wing ideology, not the Constitution itself, that adheres to this doctrine. You are conflating the two - wrongly.
Constitutional warrant for health care reform comes from the general welfare clause, and the Commerce Clause. Health care is indisputably interstate commerce. You may disagree politically with the individual mandate, but that doesn't justify you wrapping the Constitution around yourself when the Constitution is silent on health care. I take it you think the minimum wage is unconstitutional, too. But in the 1930s, the Supreme Court abandoned the view that proper Constitutional interpretation requires that free markets be left to run wild and unchecked. As Justice Oliver Wendell Holmes said, "a Constitution is not intended to embody a particular economic theory" (he meant laissez faire - see his dissent in Lochner v. New York, 1905).
Dr. Slocum, thank you for your reply. Your need to clarify that you are not a socialist or a Communist speaks volumes.
Tom, what speaks volumes is the right wing's repeated insinuation that American progressivism is one and the same as Communism. Those who make this ridiculous charge don't even know what Communism *is.* That, too, speaks even greater volumes.
Dr. Slocum, I never brought up Communism, you did. You seem sensitive when one simply brings up their beliefs regarding individual freedom.
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