That Constitution Thingie
I missed this from Volokh a while back, but since our Con-law-professor-in-chief has done so poorly defending the Constitutionality of the PPACA, someone gave Congress a crack at the job:
Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”
Here are a few more pearls of constitutional wisdom from our elected representatives.
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.”
me:
The last one actually is the most critically to me - it reveals what I believe is a bias running through most of our power infrastructure: we'll determine what we want and then we'll have our lawyers work out how to justify it, constitution or not.
April 3, 2012, 10:15 amMark2:
At least Hare, and Akaka were honest about not knowing.
Isn't Akaka one of those words that GOP candidates are not suppose to say?
April 3, 2012, 10:48 amBenjamin Cole:
The Constitution--does it allow the federal government to tell a wheat farmer how much to grow, even to the extent of outlawing growing wheat for personal consumption? And to tromp onto his land to inspect production? And to regulate production for entire crops? And to pay money to farmers to not grow product?
The USDA does all this (and much more), and no one on the right-wing ever mounted a Constitutional challenge. It was a PC federal intrusion into human and commercial rights, from a GOP-right-wing point of view.
Jeez, the GOP (and Obama) say it is okay for the federal government to say I am a terrorist and then kill me. No trial, non detention, no nothing.
So now we are surprised when the libs want to intrude in a similar manner and force us to buy healthcare?
In truth, the Constitution was worded generally, to gain passage. That was the political reality of the time. That has left oceans of room for interpretation. Even the originalists are stumped---really, we should keep people in stocks? That was not cruel and unusual punishment at the time.
And the right to bear arms? Meaning single-shot weapons, as we had at the time? Or repeating weaponry? Automatic weaponry? Weaponized anthrax? Laser guns that can cut people in half?
Our Founding Fathers intended us to join militias to defend our nation, and they detested and loathed standing militaries. That's a long way from the coprolitic mercenary force we have today, spread globally, a $1 trillion-a-year complex (VA, Homeland Security and Defense outlets now at $1 trillion). Our current military state would not pass a Constitutional smell test.
In truth, we need a new constitutional convention and a resulting document of much more clarity. But there would be disagreements, leading to blandly worded compromises.
So, remember, whatever you believe, you can fulminate about what the Constitution says, or what the Founding Fathers intended.
Fulminate away!
April 3, 2012, 11:27 amIGotBupkis, Legally Defined Cyberbully in 57 States:
>>>“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?”
Ummm: The 10th Amendment states that "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."
So the first statement Clyburn made is basically accurate. So... what say we stop the fed from doing all this crap it has no authority *whatsoever* to do in the first place?
I would call attention once more to the fact that the LAST truly great PotUS we had wasn't Reagan, wasn't Truman, wasn't FDR, wasn't even Teddy (most of our current problems with the Fed had their seeds laid during his admin, mind you)... It was Grover Cleveland, who by all indications was the last one who actually truly grasped what the job of the Federal Government was...
From the wiki:
In 1887, Cleveland issued his most well-known veto, that of the Texas Seed Bill. After a drought had ruined crops in several Texas counties, Congress appropriated $10,000 to purchase seed grain for farmers there. Cleveland vetoed the expenditure. In his veto message, he espoused a theory of limited government:
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people. The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.
April 3, 2012, 12:15 pmJim Collins:
Actually the mention of militia in the Second Amendment can be taken to mean that I should be able to own that 6000 round per minute 20mm Gatling cannon that I have always wanted.
April 3, 2012, 1:00 pmcaseyboy:
I think Grover still holds the record for most veto's.
What happens if the court upholds Obamacare and then a new president and Congress repeal it by law. The judicial precedent that Congress has the authority to compel us to buy just about anything would still stand even though insurance will be off the table for the time being.
April 3, 2012, 2:20 pmBenjamin Cole:
Jim Collins--
April 3, 2012, 4:14 pmOf course, since the Constitution only authorizes outlays for a Navy and Army, we have to ground and then sell off our Air Force. I get dibs on some of the Cobra attack helicopters....although the A-10 Warthog is cool too...
caseyboy:
Benjamin, that would have been pretty impressive had our Founding Fathers had the foresight to included provisions for funding an Air Force. In their time air superiority was defined by the number of homing pigeons one could deploy.
April 4, 2012, 10:19 amBenjamin Cole:
Caseyboy-
Exactly. And they could not know that incredibly powerful and cheap automatic weapons were on the way, or RPGs for that matter. Or that putting people in stocks for public humiliation would some day be regarded as primitive (though normal punishment in 1784).
Hence, regardless of how resolutely we bray that we are strict constructionists and originalists, we all, in fact, interpret the Constitution.
And no one on the right-wing ever sniveled about the USDA totally subsidizing and regulating the farm sector, snuffing out individual farmers' rights and initiatives.
So what's the surprise when the left wants to take away health care as a private transaction?
April 4, 2012, 10:45 am