"the Constitution explicitly forbids it"

From an Investors Business Daily editorial:

In ways large and small, it's easy to see we're building a nanny state that will make Europe's seem modest by comparison. After all, this doesn't even include health care "reform" or cap-and-trade. Soon, the federal government will control every aspect of our lives - though the Constitution explicitly forbids it.

This is the inevitable result of the massive expansion of government over the past year. The $700 billion TARP program, the $787 billion stimulus, a planned "second stimulus," $13 trillion in new debt over the next decade - inevitably, we'll see new government controls and regulations on nearly everything.

"They are awakening a vast regulatory apparatus with authority over nearly every U.S. workplace, 15,000 consumer products and most items found in kitchen pantries and medicine cabinets," the Washington Post has observed.

Yes, the Constitution explicitly forbids it. And we have a president and a Congress who all took an oath to "preserve, protect, and defend" that Constitution.

I'd say this is the biggest constitutional crisis since Watergate, except that isn't really accurate, because after all, Watergate consisted of a burglary and a coverup. Nixon resigned and the country survived with the Constitution largely intact. The problem with this constitutional crisis is on a much grander scale. We have a government now which violates the Constitution with impunity, and act as if that's just the way things are supposed to be. No wonder; if you talk about things like federalism and the Ninth and Tenth Amendments, people roll their eyes as if you must be a kook. (I am serious; the argument is largely wasted, especially on serious, ambitious policy types who think you have to live in the real world.)

However, a History Channel* documentary on the drug war which was on the other night offered a stunning if brief reminder that there was a time when the Constitution meant something. About 50 seconds into the video, former San Jose police chief Joseph McNamara (now a fellow at the Hoover Institution at Stanford) explains how the Harrison Narcotics Act made the first major end run around the Constitution:

"For the first 140 years our country included the right to ingest whatever chemicals you wished. Only in 1914 did that change. And the change is probably the most radical public policy change in the history of the United States."

What's fascinating is the way they went about it. Congress knew that the federal government simply lacked the power under the Constitution to invade people's medicine cabinets, so they got their foot in the door with a "tax" measure, and then started arresting people for tax violations.

A few years later, they faced the same constitutional problem banning alcohol, except the problem was much vaster in that there were so many people involved.

So this time they went about it the right way -- by amending the Constitution. I call the 18th Amendment the "Telltale Amendment," because its existence proves the existence of a once-flourishing Constitution, which had to be respected.

They don't need no steenking amendments today! They can do anything they want.

Especially what the Constitution explicitly forbids.

* It's a sad commentary on our plight that the only place ordinary people can get to hear about these things would be in brief mentions on the History Channel.

posted by Eric on 10.23.09 at 05:00 PM










Comments

Perhaps we need a Constitutional Amendment which declares that the three branches of government must adhere to the Constitution? We could call it... the Constitution.

We could get Douglas Hofstadter to write the Amendment, which could also be self-referential...

Mike Foster   ·  October 23, 2009 7:25 PM

Yes, the Constitution explicitly forbids it

Could you elaborate on that or provide a link?

M. Simon   ·  October 24, 2009 12:03 PM

BTW Tim Leary got the tax declared illegal by the Supreme Court.

So they folded the drug laws into a law on medicine: the Controlled Substance Act. And then declared that that the drugs they wanted to declare illegal had no medical use.

M. Simon   ·  October 24, 2009 12:08 PM

President:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Congress:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Judges:
I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.

The second oath that federal judges must take is this; it is the same oath that members of Congress take:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

New York State:

I solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of New York, (and the Charter of the City of New York, e.g.), and that I will faithfully discharge the duties of the office of (mayor of the City of New York, e.g.) to the best of my ability.

http://en.wikipedia.org/wiki/Oath_of_office

M. Simon   ·  October 24, 2009 12:16 PM

The quote is from IBD:

"the Constitution explicitly forbids it"

As to the Constitution and Bill of Rights, yes, add them all again. Quote it all in one big Super-Amendment, followed by

"AND THIS TIME WE MEAN IT!"

But would that work? What if they declared the Constitution unconstitutional?

Eric Scheie   ·  October 24, 2009 6:15 PM

They've redefined it. It's a living document.

Eh, I can see the argument (I'm surprised I haven't seen it), it falls under "providing for.. the general welfare".

You can fit whatever you decide is "for the general welfare" and voila, it's Constitutional.
Heck, that's probably why they called all those programs "welfare" now that I think about it.

Veeshir   ·  October 25, 2009 3:05 PM

Here's Constitution author James Madison on the general welfare clause:

http://en.wikiquote.org/wiki/James_Madison

***QUOTE***

With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

***QUOTE***

But I wouldn't expect it to convince most liberals.....

Eric Scheie   ·  October 25, 2009 3:37 PM

More Madison on "general welfare":

http://www.aipnews.com/talk/forums/thread-view.asp?tid=7240&posts=4

***QUOTE***

"Having not yet succeeded in hitting on an opportunity, I send you a part of it in a newspaper, which broaches a new Constitutional doctrine of vast consequence, and demanding the serious attention of the public. I consider it myself as subverting the fundamental and characteristic principle of the Government; as contrary to the true and fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated, and adopted. If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated is copied from the old Articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers."

***END QUOTE***

Eric Scheie   ·  October 25, 2009 3:44 PM

Sure, that's what it meant back then, but it's a living document, general welfare means so much more these days.

Veeshir   ·  October 28, 2009 7:53 PM

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