Bill Whittle: “How to steal power” or “Turning the Constitution upside-down”

October 31, 2011

Bill’s back with another episode of Afterburner, this time taking a look at how progressives (including Supreme Court justices) have regularly twisted (and even tortured) the plain meaning of the Constitution to get what they want, rather than what the document allows. Bill focuses on two much-abused clauses in Article I, section 8, “General Welfare” and “Commerce,” to show that, interpreted in the progressive manner, as part of a “Living Constitution,” (1) these clauses stop being limits on government’s power and instead become grants of unlimited power.

My own view is that of originalism, that the document has to be read as the Convention and the ratifying states intended. Where the language is plain, as in…

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

…then the argument ends. In more ambiguous sections (often due to 18th century grammar and style), we can use our reason (2) and examine primary sources of the time, such as the Federalist and Anti-Federalist Papers, the records of the Constitutional Convention, and the contemporaneous state constitutions to figure out what was intended.

And where the powers delegated to the federal government under the Constitution are inadequate to meet a truly national or multi-state issue, there’s this little thing called Article V that provides a means to rewrite the rules in a manner best-suited to creating consensus — unlike diktats from imperialist judges divining the current meaning of the living constitution from its penumbras and emanations.

Any other way is just stealing power.

Footnote:
(1) Just to be fair to the other side, Strauss’ recent book, The Living Constitution, has been receiving good reviews. It never hurts to know the other guys’ arguments.
(2) Contra Ezra Klein, it’s not hard.

(Crossposted at Sister Toldjah)


Abusing the Constitution: health care and the case of the Commerce Clause

August 26, 2010

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as  Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Sister Toldjah)