Anthony Weiner and the Case for Limited Government

Saturday, June 11th, 2011 at 12:39 pm 
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Scott Ott has posted a terrific column today on how the Anthony Weiner scandal makes the case for smaller government. Here’s a sample:

Constitutional Conservatives should sit down this day and write a “thank you” letter to Rep. Anthony Weiner (NY-9th) for proving, once again, that size matters.

Rep. Weiner, through his scandalous, adulterous, perverted, deceptive, and slanderous behavior, dramatized the wisdom of the Constitutional doctrines of enumerated powers and checks and balances more effectively than any think-tank white paper, talk show rant, or polemical essay could do.

Like the prophet Isaiah, walking about naked to foreshadow the coming exile of the Egyptians and the folly of Israel’s trust in her opportunistic ally, Rep. Weiner’s self-disclosure has graphically illustrated the need for smaller, limited government.

However, while Rep. Weiner should become a poster-child for the battle against large, centralized, unaccountable, bureaucratic government, he must not become an isolated exception. He’s not a freak. He’s the norm.

You see, the great risk to the Right in the midst of this sumptuous feast of Schadenfreude is that we would see it merely as Weiner’s problem, or as simply indicative of the moral vacuity of the Democrats or of the Left. It’s much more important than that. Weiner has a handicap that is shared by every lawmaker, and every voter.

Weiner is not an aberration. He typifies Congress, because he is human. And for that reason, we must move rapidly to restrain his ilk from the dangers posed by their restless, reckless, covert humanity … and by ours.

He also correctly analyzes the President’s own attitude towards the Constitution:

Mr. Obama longed for a constitution that would specify what the government “must do on your behalf.” Predictably, he wants to centralize control of our housing, banking, health care, automobile, petroleum, education, charity, and other formerly free enterprises.

As smart as Mr. Obama may be, the dullest wit in the convention of 1787 and the subsequent state-by-state ratifying conventions would put him to shame. They knew that because power is so tempting, and the concentrated consequences of transgression so devastating, we should not put all of our eggs in one basket.

By restraining the federal government to a few, specific functions, and setting it up with checks and balances, and yes, negative liberties, we mitigate the harmful effects of human nature. Smaller government is also easier to monitor, and error and evil harder to hide.

Be sure to read the whole thing.

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Article V Convention: Is It A Good Idea?

Wednesday, October 13th, 2010 at 6:08 pm 
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As citizens struggle to figure out how to rein in a runaway federal government, some Constitutional scholars are taking a closer look at the pros and cons of an Article V Convention as a way to pass amendments that will help limit the size of government:

In August, Missouri became the latest state to rebel against the new national health care law when 71 percent of voters supported a ballot initiative rejecting the legislation’s requirement that individuals purchase government-approved insurance. Several other states will consider similar measures on the ballot this November.

However satisfying this backlash against ObamaCare may be to opponents of the law, these state-based efforts could all be for naught if the U.S. Supreme Court sides with Congress and rules that the legislation’s individual mandate is constitutional.

Such a decision would have far-reaching consequences, giving broad new power to the federal government over individuals and states. It would mean that the interstate Commerce Clause would have been interpreted so broadly as to allow the federal government to regulate the activities of people who choose not to engage in commerce, and within a health insurance market where businesses aren’t even allowed to sell their products across state lines. It would represent the culmination of decades in erosion of the concept of the separation of powers between federal and state governments, and the boldest example of congressional over-reach in the age of Obama.

In that scenario, short of repeal, the only remaining way to fight the law would be to amend the Constitution. Given how polarized the modern U.S. Senate is, it’s highly unlikely that a proposed amendment would garner the necessary 67 votes needed to amend the Constitution in the traditional manner. Yet the Founding Fathers left the states one last check on federal power.

Under Article V of the Constitution, “Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.”

The Constitution has never been amended through a convention of the states, and this route remains controversial, with many conservatives fearing that the meeting would turn into a circus in the modern media age, and open the door to a wholesale rewriting of the nation’s founding document. Yet a new body of research suggests that these fears are unwarranted, and that there are enough checks built into the system to prevent what scholars refer to as a “runaway convention.” With state legislators and grassroots activists searching for ways to limit the abuses of Congress, the possibility has begun to generate more chatter.

The article is lengthy but well worth reading as it closely examines the pros and cons of executing this Constitutional option.

Hat tip: The Volokh Conspiracy

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The Health Insurance Mandate and the Constitution

Thursday, April 29th, 2010 at 6:23 pm 
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One of the more controversial provisions of the recently-enacted health insurance reform bill is the mandate for all individuals to purchase health insurance. But as Randy Barnett points out in a op-ed in the Wall Street Journal today, the mandate isn’t likely to pass constitutional muster:

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an “individual responsibility requirement” that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: “The individual responsibility requirement provided for in this section,” the law says, “. . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Paragraph (2) then begins: “The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.”

In this way, the statute speciously tries to convert inactivity into the “activity” of making a “decision.” By this reasoning, your “decision” not to take a job, not to sell your house, or not to buy a Chevrolet is an “activity that is commercial and economic in nature” that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic “activity” that substantially affects interstate commerce. But the Court has never upheld a requirement that
individuals who are doing nothing must engage in economic activity by entering
into a contractual relationship with a private company. Such a claim of power is
literally unprecedented.

Professor Barnett also co-authored a more detail analysis of the individual mandate found here. He also wrote an excellent analysis on the constitutionality of the legislation here.
 
ObamaCare was passed with little regard for the constitutionality of its provisions. Although there is a popular move to repeal the bill the more likely dismantling of the law will come through the courts. With Justice Stevens retiring, the President’s Supreme Court nominee takes on a new importance.

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