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Aim Beyond the Target

There is a subtle game being played with our constitution.  Recall when President Obama said he wished we had a charter of positive rights, which said what the government must do for us (see the second bill of rights) but unfortunately we only have this charter of negative rights saying what the government can’t do to us (see the first bill of rights Note: I don’t trust some of the details in this article).  The natural response of a conservative is to be alarmed by his desire for a different constitution but at least a little placated by his recognition that the actual document does in fact not conform to his ideal.  However, the real problem with this is that it still mischaracterizes the nature of the constitution in an important way.

The constitution was not intended to be a list of things the government must do for us nor was it intended to be a list of things they can’t do to us.  It was intended to be a list of things the government can do for us.  It is easy to confuse the two because it has a list of things the government can’t do to us at the end.  During the crafting of the constitution, there were some people, known as anti-federalists, who were concerned about the Federal government being too powerful and becoming tyrannical.  This was the source of much debate and ultimately led to a compromise in which many anti-federalists agreed to support the constitution on the condition that a bill of rights be added shortly after ratification which would serve to outline a small number of specific things which would be most likely to lead to a tyrannical Federal government and point out that we must never allow the government to do those things or the rest of the constitution would be in danger of unraveling.

Here is the argument made by the federalists against a bill of rights in Federalist Paper 84.  Notice that this is being made by Alexander Hamilton who was one of the biggest supporters of a strong centralized government among the founders.  Had I been around at the time I would have been on the opposite side in general, and in fact I disagree with some of his other arguments against a bill of rights but read this part carefully.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Now consider some of the things that are going on lately.

The administration declares that all employers must include contraception in the health insurance they provide to employees.  This leads to a national debate about religious freedom which is guaranteed by the first amendment.  In the face of this first amendment argument, the administration concedes by offering a waiver to Catholic institutions and others with a “legitimate religious objection” to birth control.

We were so busy rallying around the first amendment and religious freedom that we didn’t stop to ask: “wait a minute, where does the government get the power to force anyone to pay for someone else’s birth control?”

On the other side, this view of the constitution is being cultivated directly.  Occasionally the evidence seeps through as when someone from the Blaze interviewed this “useful idiot.”

Meanwhile the Supreme Court considers whether or not the government can force an individual to buy health insurance under the commerce clause.   The transformation requires two simultaneous movements, a rhetorical movement to convince the public and a legal argument to convince the courts.  The courts, you see, are well aware that the constitution is supposed to be a charter of enumerated powers.  Therefore, in order to transform it into a charter of negative rights, they must find a specific clause in the constitution which grants the power to do pretty much everything.

Conveniently, they have discovered the commerce clause.  The original intent of this clause was to give the Federal government, the ability to prevent states from erecting tariffs and other trade barriers for other states.  The current interpretation, however, has become that the Feds can do anything they want as long as it has some effect on interstate commerce.  Luckily for them, everything has some effect on interstate commerce.

The argument that they are making now is that if you don’t buy health insurance, you will eventually use healthcare anyway and so this will effect healthcare markets which are inherently interstate markets.  For the record, there is a real problem with people not buying insurance and then using healthcare but this problem is entirely created by government deciding to guarantee everyone healthcare in the first place.  So by their argument, the government can make policy that results in your doing nothing potentially having some effect on some market at some time in the future if you engage in some presumed hypothetical behavior and then use this to force you to do something they want you to.

This argument is actually unnecessarily circuitous in order to prove a connection between doing nothing and some interstate market.  The fact that you are reading this article means you are not planting wheat, which you could be doing instead, and if you did, it would affect the market for wheat, so by their logic, clearly the government can force you not to read this article.

During oral arguments, Justice Kennedy (typically the swing vote) was searching for some limiting principle which would remain if the individual mandate were upheld.  This is presumably because, if some such principle is not found, it would be impossible to maintain the notion of the constitution as a document limiting the power of the Federal government.  The administration has tried to argue that healthcare is somehow unique and so the same argument would not apply to some other markets but of course, any market can be claimed to be unique, this provides no clear limitation on Federal power.  So the court needs to find some limiting principle in order to uphold the law.  Hmmmmm………what could such a principle be?

Now listen to the useful idiot again.

She is making the argument they need. The transformation is almost complete and we don’t realize it because we let them convince us the target was a “charter of positive rights” when in reality the “charter of negative rights” was the real target.  It’s exactly what Hamilton predicted.  You can almost hear them now.

Conservative: If the government can use the commerce clause to force you to buy health insurance what can’t they do?

Progressive: Well, obviously they can’t infringe on your free speech or freedom of religion, or discriminate against you based on race, gender, disability, etc.  There’s all kinds of things the government can’t do to you.  Clearly, you don’t know anything about the constitution you claim to love so much.

Conservative: ????

What will we say?  Think about it.

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  1. July 23, 2012 at 5:32 pm

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