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No Way

Recent postings on this blog suffice to tick off the Good Humor man and to compel my emergence from whatever the summer equivalent of hibernation may be.

(I am kidding. Frank and fun exchange is what this place is for.)

Re Greg Weiner’s “popular constitutionalism” argument for judicial deference in the Affordable Care Act cases: the apprehension that judicial intervention might dilute voters’ and politicians’ incentives to entertain constitutional arguments on their own accord is perfectly sensible. However, it comes with a cost: if nothing is ever beyond the judicial pale, the message isn’t that constitutionalism is too important to be left entirely to the Court; it’s that the Constitution is a joke. To my mind, that is the actual point at issue in the case. The individual mandate itself is (in my estimation) a close question. Recall, though, the way in which this dastardly statute was enacted: from the Cornhusker kickback to “deemed enacted,” from Speaker Pelosi’s “are you kidding me” to her “now that it’s passed, we can find out what’s in it” comments, the entire project was based on a brutal contempt for both republican government and constitutional forms. A “never mind” ruling, to say nothing of “we must respect the democratic process” opinion, strikes me as highly unlikely to restore popular constitutionalism. Rank, undisciplined populism seems a more likely (and frightening) response: none of our institutions work. Bring out the pitchforks.

Re brother Rappaport’s thoughtful and ingenious defense of a “Madisonian” interpretation that would limit the power of Congress to tax (and spend) for “the general Welfare of the United States” to the enumerated powers: I still don’t buy it. True enough: the enumerated powers all fit the general welfare criterion (and Mike makes a plausible argument why the redundancy—why authorize taxing and spending if the enumerated powers, in combination with the Necessary and Proper Clause, already authorize those means, need not be fatal.) However, the notion that the enumerated powers are coextensive with “general Welfare” produces a heap of trouble.

On one side, not every exercise of taxing and spending pursuant to enumerated powers can be said to enhance the “general Welfare” or for that matter to provide for the “common Defense”: countless post roads and defense installations are pure pork.  (This problem isn’t a hypothetical. It produced a hilarious exchange between Madison and Jefferson in the very First Congress.) What’s the answer—that the power to tax implicitly restricts the other power to enact “necessary and proper” legislation? If that’s what the Founders meant, they sure chose a funny way of expressing it.

On the other side, oodles of “general Welfare” taxing and spending measures fall outside the enumerated powers. Suppose some foreign aid assistance to Mexico would abate the flow of illegal immigrants: while the measure would plainly aid the “general Welfare of the United States,” it isn’t covered by any enumerated power or, so far as I can see, “necessary and proper” to the exercise of any of them. I am aware of arguments to the effect that therefore, or for reasons of this sort, we cannot tax and spend for AIDS prevention in Africa or democracy promotion around the world. In charity, let’s say that I do not find those arguments very plausible; and that additional examples of the general Welfare/enumerated powers mismatch spring readily to mind.

Back to the beach.

Reader Discussion

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on June 20, 2012 at 10:07:30 am

And so we are subtly returned to the issue underlying all disquisitions of powers of taxation and disbursements:

What are to be the functions of the federal government and how shall they be determined.

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Image of Richard Schweitzer
Richard Schweitzer
on June 20, 2012 at 19:36:10 pm

1st. The quote in the Constitution doesn't say "PROVIDE' for the General Welfare it says to "PROMOTE" the General Welfare. There is a difference. 2nd. The Constitution,for all intents and purposes is dead. For the average American it has been superseded by the Social Security Act and the Civil Rights Act. We now live in a nation of legal contracts which makes a citizen's possession of a Social Security Number tantamount to being legally a ward of the State. This is why it is voluntary having a Social Security Number and,at the same time, voluntary to the filing of Income Taxes. If it was mandatory it would be in violation of several Constitutional Rights. Namely the 4th,5th and 13th among others. So we volunteer to have our individual person numbered with a Social Security Number. Once we volunteer and become legally wards of the State then the basic tenets of Obamacare can be adhered to. Of course it is almost impossible to operate in today's America without that Social Security Number but that is besides the point. Our modern system is outside the Constitution and falls basically under a type of modern Roman Contract Law. In other words the Constitution is gathering dust on a shelf and most Americans come under the status of a walking corporation. This is why any arguments against Obamacare are mute. Most of us have already placed ourselves into the jurisdiction of the Federal Welfare State. Volunteering to do so..

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Image of libertarian jerry
libertarian jerry
on June 20, 2012 at 21:32:32 pm

Sorry Jerry,

Art I; Section 8 does say "provide," not promote.

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Image of Richard Schweitzer
Richard Schweitzer
on June 20, 2012 at 22:06:24 pm

Richard your right. I was referring to the Preamble.

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Image of libertarian jerry
libertarian jerry
on June 21, 2012 at 02:46:21 am

Since we should end this debate, let me just add one small point, in part to respond to Michael's amusing examples. Michael writes that "we cannot tax and spend for AIDS prevention in Africa or democracy promotion around the world. In charity, let’s say that I do not find those arguments very plausible." Michael might be correct that denying this power would be a nonstarter today, but that does not say anything about the Framers. I haven't yet found any indication that George Washingtion supported promoting AIDs prevention in Africa! And while Washington favored liberty for the world, the way he sought to further it was through our voicing encouragement, not with government funding.

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Mike Rappaport
on June 24, 2012 at 14:55:46 pm

Speaker Pelosi’s comment reflects the lack of a reasonable amount, 6000-12000, members in the House.

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Eric Hodgdon
on July 19, 2012 at 11:55:20 am

I dothe fact is the states fund the budliing and maintaining of roads with the state tax on gas.the states where intended to be run independly of the federal government, but the federal government has taken enormous power from the states by giving the states federal money (the evil 16th amendment) thus the states must do what the feds want or the feds pull the money Was this answer helpful?

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Mary

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.