* Constitution twisting & precedent
Topics: Rights, Regulation, Theory
10 Nov 1994
From: "DG Ervan Darnell"
In 1935, in "Our Enemy, The State", Albert Jay Nock wrote:
Moreover, it [U.S. government] improved upon the British model of this
appparatus by adding three auxiliary devices [...] second, the device of
judicial review and interpretation, which, as we have already observed, is
a process whereby anything may be made to mean anything; third, the device
of requiring legislators to reside in the district they represent, which
puts the hightest conceivable premium upon pliancy and venality, and is
therefore the best mechanism for raplidly building up an immense body of
patronage.
Item (3) speaks for itself, but it is item (2) that interests me at the
moment. Nock continues in a later chapter:
Every intervention by the State enables another, and this in turn another,
and so on indefintely; and the State stands ever ready and eager to make
them, often on its own motion, often again wangling plausibility for them
through the specious suggestion of interested persons.
I thought of this when I read in the paper (11/9/94 Chronicle) that the
solictor general is arguing that Congress has the authority to ban
possession of guns near schools based on the commerce clause of the
Constitution. It says:
Article I.
Section 8. The Congress shall have power
[...]
To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes;
Regardless of how good of an idea that might be, it is clearly an impossible
stretch of the Constitution. The article reported Scalia as sceptical.
Hopefully his version of constructionism will cause him to hold to his
scepticism. Ginsberg (!) said that if that rationale were followed,
congress had the authority to do anything whatsoever. Absolutely right.
This case is a double stretch. Not only is it not about commerce it has
absolutely nothing to do with *inter*-state commerce which congressional
authority is restricted to.
Nonetheless, "children's advocates" (yeah, right) argued that gun control is
a such a good idea the law is constitutional. That is just a non-argument.
'Pornography is so evil, we must make an exception to the First Amendment',
blah, blah, blah.
It is interesting what a tortured road the commerce clause has taken. As
odd as it seems today, people actually used to believe in the Constitution
and think that Congress could not act except where it had authority.
For instance, the '64 Civil Rights Act was based on the commerce clause.
The Supreme Court had previously (1875) struck down similar legislation.
Anything can mean anything.... This was no stretch at all given the
precedent of Wickard v. Fillburn (1942) in which the Supreme Court decided
that the commerce clause gave Congress the authority to prevent a farmer
from growing wheat on his own farm to feed his own livestock! That followed
from United States v. Darby (1941) in which the Court decided that Congress
had the authority to set minimum wage for all of any industry which shipped
anything across the state lines. Thus the farmer influences other farmer's
interstate commerce and congress has authority to regulate. Setting minimum
wage for everyone followed too, without a bat of an eye. Thus, the
Constitution's limitation is entirely circumvented.
Another interesting instance (analysis borrowed from the latest Texas LP
newsletter) is "emergency powers". The Fifth Amendment says:
No person shall be held to answer for a capital or other
infamous crime unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service, in time of war or public danger;
[...]
That's a fairly narrow exception. In 1917, Congress broadened it with the
"Trading with the Enemies Act", regardless of a state of war. This was used
to prevent people from trading in gold (with any country, enemy or not).
The Federal Reserve was just getting started and private gold would not have
allowed the government to monopolize money. In 1933, this was extended to
include any transaction involving gold, including 'hoarding', i.e. even
personal possession for monetary purposes. You'll notice the close
connection between having gold and serving in the army during war. Though
gold is again legal, in some circumstances, the authority is still there and
is still used for "emergencies."
Congress will abuse, twist, and stretch any authority it is given. The oath
of office (to uphold the Constitution) never even makes it to any conscious
level in your average congresscritter. The system does not reward Congress
for staying within the law. Just the opposite, the reward is for finding
clever ways around the law. The original purpose of the law will not be
how it is applied in the future (if ever). Future politicians will not try
and follow the original intent. Instead, they will use the language to
justify whatever it is they want to do anyway. Worrying about legalisms
does matter. Any argument that scoffs at the value of precedent or wants to
justify this particular issue as worthy of an exception begs for much
greater trouble ahead.
The government should be returned to its Constitutional limits. But, I have
no illusions this is possible.
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