How's That Working Out for You?

One of the most thoughtful and proper reforms instituted after the 2010 Tea Party victories in the House was a requirement that bills contain a statement explaining just where in the Constitution the Congressmen found authority to take the action described by the bill. Fantastic idea, except...
“We started highlighting horrible Constitutional Authority Statements because there were so many of them,” said Brian Straessle, RSC spokesman....

The Eva M. Clayton Fellows Program Act’s justification from Oct. 25 cited “Article I, Section 8, Clause 3 of the Constitution, [under which] Congress has the power to collect taxes and expend funds to provide for the general welfare of the United States.”

“This Constitutional Authority Statement would be fine were it not for the fact that words actually have definitions,” the RSC response said.
Well, they were only two clauses off. Oh, and, a fellows program doesn't provide for the general welfare of the United States. Oh, and the program in question actually has nothing to do with the welfare of the United States: it's directed at the problem of world hunger.

This is like cutting taxes in the absence of a balanced budget: they shrug when they can't collect as much as they want to spend, and just borrow money to spend instead. What we need is some sort of enforcement: if the stated constitutional authority doesn't really exist, the law should not be valid.

A big problem with that concept, of course, is this summer's demonstration by SCOTUS that it will crawl over broken glass to find a way to think a law is constitutional, even in defiance of the plain text of the law and the clear statements of intent by its authors.

So, really, the problem is the political class -- top, bottom, Congress and lawyers. Bureaucrats too.

26 comments:

kgibson1228@yahoo.com said...

Amen, Sister. Or maybe the problem is just lawyers. Just lawyers. Hmmm, yep, I think that may sum it up.

Grim said...

Brother, this time. I did sound like Tex there, though, didn't I?

DL Sly said...

In all honesty, Grim, when I read the preview paragraph on my aggregator page, I thought it was a post by T99, as well.
Which, IMHO, is a compliment in both directions.
0>;~}

Joel Leggett said...

Your right, the whole problem is due to lawyers. It couldn't possibly have anything to do with an electorate that votes for liberal politicians or demands more and more goodies from a government that is trillions of dollars in debt. No, lets fail to hold the people accountable and blame the whole mess on a single profession. Conspiracy theories are much more comforting than the truth.

Grim said...

I intend to blame only -- as I said -- "the political class," including those lawyers (and others) who are members of it.

The electorate is also to blame, in a way, but Congress and others take an oath to uphold the Constitution. If the electorate wants goodies, the Congress ought to say no when it is outside their proper scope and power to do otherwise. There's nothing unconstitutional about wanting things that the government can't properly provide; but it is unconstitutional for the government to provide those things.

Also it leads to disaster, as we shall sadly see -- first in California, perhaps.

Texan99 said...

I don't know. Isn't it a bit like blaming the store's security for the activity of shoplifters?

A free society works only if people don't take every opportunity to glom onto everything that's not nailed down. And if we don't like our elected representatives, whose responsibility is it but ours either to vote for better ones or run for office ourselves?

Not that I don't agree with you entirely that we will come to no good end by pretending that the Constitution is infinitely malleable. People now seem to want a government that is effective, not limited, because they're losing sight of any possibility of accomplishing anything by means other than government. Lawmakers who are careless with their authorization clauses are as impatient with the silly restrictions contained in the Constitution as I would be with a petty, meaningless city ordinance that was getting in the way of my building a house that would hold up in high winds.

Grim said...

People now seem to want a government that is effective, not limited, because they're losing sight of any possibility of accomplishing anything by means other than government.

That's a self-fulfilling prophecy: at least half the reason you can't accomplish anything is that the government regulatory state prevents you from doing it without a massive up-front investment in trying to learn what the regulations are and comply with them. But the regulations are changing every day (especially with ACA coming online). Who would invest money in a business with unknown, rapidly-changing costs -- especially at a time when the economy makes revenue uncertain?

Joseph W. said...

The electorate is also to blame, in a way, but Congress and others take an oath to uphold the Constitution. If the electorate wants goodies, the Congress ought to say no when it is outside their proper scope and power to do otherwise.

The Libertarian Party and the Constitution Party frequently field candidates who promise to do just that. For some reason they haven't replaced the major parties. No doubt because those dirty, evil lawyers have stopped them somehow.

Anonymous said...

I blame non-readers.

Valerie

bthun said...

There's plenty of blame to go around, but IMHO it boils down to the electorate.

Too many voters are... uniformed at best. The ignorant and/or covetous many allow the few, the elected/appointed to get away with anything. Especially with a complicit propaganda machine posing as the Fourth Estate assisting in the shaping of the message.

THE Ø has, once again, voiced his desire to impose his will on the Congress, aloud, and in Burma, no less. Anyone care to bet on when, over what matter, and how far he will push that sentiment?

Increasingly I'm of the opinion that the nation is a potential explosion waiting a match...

I think I'll assume the hushed position once again.

bthun said...

Make that waiting for a match.

Grim said...

Tex:

It would be more like blaming the security officers for giving the store's stuff away to people who asked for it. In a way you can understand why someone might ask (as opposed to steal); but the job of the security staff is to say no, not to help them load their truck.

JW, Tex, et al:

If the problem is not the political class but the People, then I suppose we are finished here. There's no reason to think about a political solution if the problem is really that the People have decided that they want a different form of government -- an unlimited one, where the Constitution serves the function of a sort of beloved relic and symbol, but exercises no practical limits on government authority or power.

It is possible to replace a bad political class, though very difficult given their hold on the levers of power. It is a more severe matter to replace a bad People.

Tom said...

I think that the problem is a majority of the people.

Grim is right that our next step, then, is to replace these people. This requires, first, gaining sufficient power over the education system that the next generation will be properly educated, and second, new generations.

Texan99 said...

And if the security staff work for the people loading the goodies on the truck? Theft is theft, no matter who's enabling the thief.

Joseph's comment reminds of the many bitter harangues I had to endure from my late father-in-law about lawyers. He stopped at last after I suggested mildly that I would prefer it if people mediated their disputes by personal combat. And I made sure he hired someone else when he needed legal work done.

bthun said...

//The old Hun tips his hat towards Tom//

Controlling the education of the children sure seems to be the key.

Additionally and as Mr. Hines has noted a time or two, this culture war, or whatever you prefer to call it, will last for the next generation or two, or three.

Unless of course someone strikes the match...

"Joseph's comment reminds of the many bitter harangues I had to endure from my late father-in-law about lawyers."

Indeed. It is easy to dislike the profession, unless and until you find that you need the services of a good one.

Now if a critical mass of attorneys/legislators were to draft legislation that requires the repeal of two laws for every new law to be passed, the legal profession might just have a PR winner on their hands. ;)

Joseph W. said...

There's no reason to think about a political solution if the problem is really that the People have decided that they want a different form of government -- an unlimited one, where the Constitution serves the function of a sort of beloved relic and symbol, but exercises no practical limits on government authority or power...

A slightly subtler one. Some restrictions imposed by the constitution -- e.g., no infringement of the right to bear arms, no infringement of freedom of speech -- really are popular with broad swaths of the electorate. Pro-gun candidates certainly can get elected, and opponents of McCain-Feingold certainly could make their voices heard and were not marginalized.

But the idea that the Tenth Amendment means what it says, and that "regulate commerce" means only "regulate commerce"...and not "regulate anything that can be used in a sentence with the word 'commerce'..."

...in short, the constitutional provisions that, if held to, would've prevented the current debt and fiscal problems...these ideas are not so popular compared with dishing out the goodies. And on that point I think you're right -- that no time soon are we going to be able to use the political process to return this country to such rules. It's no excuse for not trying, and much honor to everyone who does! - but the odds of success are vanishingly low.

Put another way, if we end up splitting into multiple countries with new constitutions created by new conventions - I think most of the population will end up in countries with federal (or unitary) governments that do not restrict the powers of the legislature in the way Article I, Section 8 and the Tenth Amendment do when read naturally and honestly.

I'd like it to be simpler - I'd like for there to be a small subset of villains that we can defeat in a grand adventure, with limited, responsible government and liberty on the other side. But I fear it is not so.

Grim said...

Some restrictions imposed by the constitution -- e.g., no infringement of the right to bear arms, no infringement of freedom of speech -- really are popular with broad swaths of the electorate. Pro-gun candidates certainly can get elected... But the idea that the Tenth Amendment means what it says...

Always I had thought the point of the Second was to serve as a final defense of the Tenth, and the rest. If they have made it a right to own pleasant toys, while conceding the things it was meant to defend, then we have lost the Republic. It is already time to think on what comes next.

douglas said...

"If the problem is not the political class but the People, then I suppose we are finished here."

I'd also like to blame the electorate (or that portion of it which disagrees with me), but alas, I cannot- not solely. What have I really done about it? I've taken on a new project after post-election consideration- in the next four years, I will have opened up at least two people to the possibility that conservatism is the answer, and the constitution means something. I've lived too long with my head down, minding my own business as I muddle through life among a sea of differently minded, but nice enough, people as my neighbors. My wife used to be a bit on the liberal side (remnants of a European childhood, I suppose), but the opening was there. Years have passed, and this election in particular, she's become animated and determined to start getting through to people- she's now the evangelist- and she is still a registered independent. For Veteran's day, we went to the Reagan Library, as it's close to home, and what struck me was that this man wasn't a moderate, but successfully got through to people in the mushy middle because he believed in something and lived it, and because he maintained a positive attitude- which I think was no small part of his success. I'm not sure how this will all work out, but I know I must try to be more of the happy warrior Reagan was, and be more active and open about who I am and what I believe and why, and unsettle people on the other side just enough to possibly stir them from their assumptions. The people really aren't that bad, but they've been misled and apathetic to be sure. What will I do about it?

Wish me luck.

Texan99 said...

I do, very much. The electorate, like any mass of people, is a collection of individuals, each of whom is the only one who can make choices for himself. If we as a voting public are making bad choices, each of us individually is the only place to start changing that, by winning people over in our own lives.

You never know what seed you'll plant in someone who seemed unreceptive at the time. Maybe someday he'll find himself unable to go on with the status quo and will be casting about for an alternative. You may have given him the beginning of one. It's happened to me more than once, as I've experienced at least two major conversions in my life.

Joseph W. said...

Always I had thought the point of the Second was to serve as a final defense of the Tenth, and the rest. If they have made it a right to own pleasant toys, while conceding the things it was meant to defend, then we have lost the Republic. It is already time to think on what comes next.

If your standard for that is whether the Tenth Amendment still has meaning...then we lost the republic with Wickard v. Filburn (the case that basically decided that the Commerce Clause could be used to expand the scope of the federal government to just about anything); "regulating commerce" now means "regulating anything with a nexus with commerce...there was a little gasp of oxygen in Clarence Thomas' concurrence in United States v. Lopez, but that was a one-judge concurrence and hasn't led to much of anything since.

E Hines said...

If your standard for that is whether the Tenth Amendment still has meaning...then we lost the republic with Wickard v. Filburn....

I always thought the problem began with Nebbia v New York and NLRB v Jones & Laughlin, which combined to make Wickard if not possible, than at least far easier to reach. But maybe that's a quibble.

For all that, though, I disagree with idea that the Republic is lost due to any of these, or any other SCOTUS ruling. Their rulings always can be undone--by reversal in a more sensible court, by legislation, by force. And that force need not be the shooting war that it took to reverse Dred Scott; it could be the FDR tactic of intimidating it, it could come from impeaching Justices who demonstrate their plain lack of understanding of the Constitution they're sworn to uphold (and not to amend from the bench), it could come from better Presidents taking advantage of natural vacancies and appointing better Justices, with the agreement of a better Senate.

The Republic is never lost until we surrender it, come to that.

Eric Hines

Grim said...

There's a different point I'm after.

My understanding of the 2nd was always -- I mean, I was raised to believe this -- that while we understood that the government was in violation of the Constitution on many points, the 2nd was the final appeal if we lost all the others. We held to political solutions as long as we could, but if it finally came down to it and it was clear that the government would not be restrained any other way, that's what the 2nd was for.

It sounds instead as if you're suggesting -- and perhaps are right to suggest -- that the real opinion of most of America is, "Actually, we're fine letting those parts of the Constitution go. All we want out of the 2nd Amendment is cool guns."

I don't know what to say about that. If it's true, then I'm not sure I see the point. The Gettysburg address talked about preserving government "of the people, by the people, and for the people" while leaving out that, actually, the survival of such government was not in any danger in that particular war. (The CSA didn't intend to abolish the USA, and in fact was very similar constitutionally -- chiefly the difference was even more limits on the power of government).

So what do we say when the people decide that this is really what they want? The government is of them, by them and for them: and they're backed by all the lawful mechanisms, including SCOTUS, which has long arrogated the power to be final arbiter on these questions.

Why shouldn't they get what they want? Those of us who are sworn to the Constitution need to find a way to preserve it outside the old system, because the Republic as such is no longer viable.

E Hines said...

I was taught--and this may be a generational thing--that the first purpose of the 2d Amendment was to enable us to defend ourselves against an overweening government--an (not the) implementation of that principle of the Declaration of Independence: ...whenever any Form of Government becomes destructive of these ends, it is the Right [and duty] of the People to alter or to abolish it, and to institute new Government..., and the second purpose was to enable us to procure our victuals. Playing around was never a part of it; guns were tools, not toys; although, the fun and games part can certainly be a legitimate side use.

As to The government is of them, by them and for them: and they're backed by all the lawful mechanisms, including SCOTUS, which has long arrogated the power to be final arbiter on these questions[ ], well here's where I repeat my remark above: The Republic is never lost until we surrender it. After all, the government is of us, by us and for us, too.

And if it comes to that final resort, we'll be better at that, too.

Eric Hines

Cass said...

One problem, Grim, is human nature. Another problem is that, despite what I keep reading on conservative sites, the meaning of various parts of the Constitution when applied to an infinite number of different scenarios isn't really all that obvious.

And a third problem, as several have noted, is that all the laws in the world don't mean much unless and until they're enforced. And that usually only happens when someone is willing to make that happen. There's no "autopilot" for government that will make everything run smoothly with no effort or input from the governed.

You could change out all the players tomorrow and the new ones would still find ways to do dumb things. There are systems of laws that make it easier for people to do dumb things and ones that make it harder but I've never seen one that makes it impossible (that we'd want to live under).

Grim said...

Yeah, Cass, I get that.

What I don't get is Mr. Hines' point. That sounds like a war to make a government 'of, by and for the people' accept a reading they don't want. I'm not sure we have the right. We're better at war: I don't dispute that, and I think a substantial part of the warriors would defect to our side. (Fully half the Marine Corps did, in 1860.)

But maybe that's the wrong path altogether. Maybe separation is the right answer -- Federalism by preference, but secession as a second alternative. I don't see the capacity to impose a view of the Constitution on those who disagree, and who just want a government who will give them stuff and not interfere overtly with their lives. I doubt we have, or would want to exert, the kind of force necessary to make that good.

There remain some places where the old view holds. I think I can speak from here to Texas, maybe parts of the Mountain West. There's a lot we can work with there, without making anyone live under a law they'd hate.

E Hines said...

That's not my point at all; to quote someone, you need a more careful reading. [g]

I have said for some time that we're not at the point of violence to enforce our rights. What I did say, just above, is that we're part of the people for whom government exists, and we have as much right to enforce our rights as do "they." And we have as much right to proselytize our principles and to seek to convince our government to do a better job of (re)implementing them as do "they" (read: fire the blackguards and hire others, through the electoral process). We have no need to cede the field solely because "they" are louder than us.

Which leads me to the view that secession, at this point, is just a toddler's temper tantrum and not a rational response. I support the secession petitions for their symbols of dissatisfaction and their low key abuse of a bastard process, not because they're to be taken as serious withdrawals from the union.

I don't see the capacity to impose a view of the Constitution on those who disagree....

And yet that's exactly what we did in our Revolutionary War. The Loyalists also were free to leave or assimilate, at their choice. As are today's Progressives. We're just not at the point, today, of forcing that choice at gunpoint.

Eric Hines