Limited Government

The Constitution Then and Now

I have just finished a rather thorough book on the history of the ratification debates written by Pauline Maeir, titled Ratification: the People Debate the Constitution.  The recurring theme throughout the debates from the Constitution’s opponents is concern that the Framers had created a centralized state that would, especially through its vast taxing powers, become corrupt and tyrannical.  I have been over this to some extent in a previous post, and I once again highlight the words of the Anti-Federalist writer Brutus because it is one of the best expressions of anti-constitutional angst:

Exercised without limitation, it will introduce itself into every corner of the city and country. It [the national government] will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take the cognizance of the professional man in his office or his study; it will watch the merchant in the counting-house or in his store; it will follow the mechanic to his shop and in his work, and will haunt him in his family and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house and in the field, observe the toil of his hands and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States.

Fast forward 223 years later (or more than 100 years if you’re Ezra Klein), where we witness the Constitution being read aloud on the floor of the House of Representatives.  Republicans have promised that in every proposed piece of legislation they will cite the constitutional authority for each provision – and contra what the New York Times may think, Congress, and not just the Judiciary,  has the authority and ability to interpret the Constitution for itself as a body (as does the President).  The reason for all this as that conservatives feel that a more filial observance of the powers – and limits to said powers – of the Constitution will reign in the federal government.  In other words, we need to more faithfully interpret the Constitution if we want the federal government to become less centralized and less tyrannical.

So were the Ant-Federalists right?  Reading Maier’s book, as well as any selection of the Anti-Federalist papers, one is almost tempted to label the constitution’s original critics as prophets as indeed many of their worst dreams came true.  Perhaps the most prescient prediction is that the federal government would, in essence, swallow up the states as state and local governments have diminished in power and authority over the years.

It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government.  I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government.  Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act.  Under the Articles of Confederation legislation required unanimous consent among the states.  Further complicating matters, some states refused to furnish needed funds to keep the national government solvent.  So the purpose of the Constitution was in fact to enhance federal authority.

But the story doesn’t end there.  The delegated powers were few and well-defined.  One of the principal Anti-Federalist arguments was that the Constitution lacked a Bill of Rights, to which the Federalists responded that the Constitution itself was a bill of rights.  The people need not fear that the federal government would engage in actions that were clearly outside of its delegated authority.  Eventually the first Congress would adopt a bill of rights, partially as a means to placate reluctant ratifiers.

And so now proponents of limited government turn to the Constitution in order to justify a more limited state.  Are we simply wrong?  Perhaps the Constitution’s grant of authority is as broad as the Anti-Federalists feared, and we are clinging to a mistaken notion of what the Constitution does and does not prohibit.  I’m sure several people reading this would tend to agree with that notion.  Anybody remotely familiar with my writing would not be surprised when I say that part of the crisis we face is due to a neglect of the original intent of the Constitution.  The problem lies principally with a judiciary that has mis-interpreted the Constitution so overwhelmingly that they have rendered large parts of it – especially the Tenth Amendment – practically null, while expanding and twisting other elements – notably the commerce clause and 14th Amendment – to fit their needs.  Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe.  If you’re not familiar with the case, do read the opinion of the Court as handed down by Justice Jackson, and see how the Court – unanimously – decreed that eating food that you grew on your farm somehow affected interstate commerce.  Once such a tenuous connection was made between private activity and interstate commerce, the floodgates were opened, tempered only slightly by narrow Supreme Court decisions in the late 90s that did not fully reverse the reasoning behind Wickard.

At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.  I suspect that conservatives and leftists will have wildly varying opinions as to what that signifies.

Criminalizing Kindness: Will the Real Hobbesians Please Stand Up?

I read a lot of bad news every day, but this really tears it. A 78 year-old man named Rosco O’Neil has been charged with operating an illegal taxi service, has had his car impounded and a $2000 fine imposed upon him for offering to give a woman a ride home from a grocery store. The woman, you see, was an undercover police officer, part of a sting operation to rid society of the menace of cheap transportation for people who need it the most. Aside from the fact that this was a case of blatant entrapment, since O’Neil hadn’t even mentioned money and told the woman upon her inquiry that she could give him whatever she liked, this is also a case of the inhumanity that statism breeds.

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Principle of Subsidiarity Violated by ObamaCare

Rerum Novarum by Pope Leo XIII

The U.S. Conference of Catholic Bishops made a determined effort for universal health coverage, without abortion, in the run-up to the vote on ObamaCare.  In the end, due to the abortion language in this bill, they condemned it in its entirety.

Now I believe that our bishops had the best intentions of wanting universal health coverage, but this violates the principle of subsidiarity.

The Principle of Subsidiarity is the handling of affairs by small-scale, bottommost, or minutest government.

In 1891 Pope Leo XIII wrote an encyclical, Rerum Novarum, which said that government should undertake only those initiatives which exceed the capacity of individuals or private groups acting independently. Functions of government, business, and other secular activities should be as local as possible. If a complex function is carried out at a local level just as effectively as on the national level, the local level should be the one to carry out the specified function.

Private insurance agencies cover over 84% of all Americans, with an overwhelming 93% saying they are satisfied with their coverage.

And those that are uninsured, can get readily available treatment for a serious illness.  Including illegal aliens.

So why the bishops haste and aggressive posturing in pushing for something everybody already has and are satisfied with?

Grassroots Push for Democrats for Life

Here is a blog I wrote for fladems4life.org- this is the website for Florida Democrats for Life organization- If you are a Democrat and pro-life you should seriously consider joining the National and State chapters for Democrats for Life. There is a lot of freedom for you to bring your ideals and ideas into these growing organizations. I believe it is mostly a waste of time trying to turn Democrats into Republicans or vice versa- there is a philosophy of governance that pulls deeper than individual issues- even big issues like abortion.

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'The Federalist Papers' and Contemporary Political Challenges

American Political Theory and Constitutional Law Series, Pt. I

The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.

In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes,  to line-item veto just begin the list in attempts to reshape the constitutional order.

For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.

American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.

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Wyoming News: Mission Abort and Sin Tax Errors

At the advent of a presidency that has been accused of being the most pro-choice in history, there’s some good news.

Wyoming is now considering jumping on the bandwagon of trying to make abortions more difficult. There are currently three bills before the legislature dealing with the topic of abortion. The first, and one that draws all manner of painful cries from NARAL and other pro-choice organizations, is the requirement that any pregnant woman seeking an abortion must have an ultrasound performed. The complaints here focus on the lack of equipment in some regions of the state, supposedly barring some women from being able to undergo the procedure. To this, I have to roll my eyes. There are people in Wyoming who have to drive two or three hours to reach a grocery store. You have to spend at least an hour on the road to go from one significant town to the next. I think travelling to Casper or Cheyenne or one of our other “large” towns for such an “important” procedure shouldn’t be beyond most Wyomingites’ ability. Of course, the real point is that if a woman sees her baby in the ultrasound, she’ll be smitten with a bout of guilt and won’t be able to go through with it. There’s a reason why we have the phrase “Out of sight, out of mind.”

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The Moral Content of Politics

Amy Welborn had a post the other day making a very important point, summing up much of what I’ve been thinking but not successfully putting into words for much of the interminable lead-up to this election. Amy asks:

[I]s Catholic politico-talk, particularly in the present moment, as most of us are engaging in it, taking place essentially on the level of vague assertions, associations and concepts? And – are we avoiding and ignoring the way that government and political processes actually work?

She singles out two particular areas in which Catholic bloggers have often imbued politics with too much weight, and thus divorced it from what it is.

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