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Daily Archives: December 31, 2010


Ezra Klein wonders what good a Constitutional cite will do on future legislation

Ezra Klein got himself in a bit of hot water by saying some things about the Constitution that appear to have been misinterpreted.  He originally commented on the subject while talking about the new GOP rule that requires a Constitutional reference be put on every bit of legislation offered to, one assumes, prove it’s Constitutional viability.  Unfortunately, it isn’t Congress which gets to decide what is or isn’t Constitutional.

The old saying, “the Constitution says what the Supreme Court says it says” is never more true than it is today.  In fact, “interpreting” the Constitution is the SCOTUS’s primary job.

Klein actually uses an example in ObamacCare to make his point about the GOP’s new requirement:

"The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce," reads the opening paragraph. Shortly thereafter, the legislation makes itself more explicit: "In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation."

Now you may disagree with the argument, but you can’t disagree with the point.  And you should note that while it cites the constitutional provision generally (commerce clause), it specifically cites a Supreme Court case as another cite.

Klein goes on to say that both sides have a tendency to interpret the Constitution to their benefit – which I would say is, for the most part true.  However, I’d also suggest that the difference between the two sides is the right has a tendency to interpret the Constitution as a limit on government – something the founders wrote it to be.  In my opinion then, the right therefore tends to be more in line with the original intent of the Constitution with its interpretations than is the left.  The left, in many cases, sees the Constitution as an impediment to broadening the powers of government far outside the seemingly clear powers granted the government by the Constitution.  I’d say they’ve been very successful in achieving their aim to this point.

Anyway, to make his point about both sides and their interpretations, Klein uses the 2nd Amendment as an example of the right’s interpretation of the Constitution to their benefit (i.e. unrestricted possession of firearms).  His claim that this is probably an incorrect interpretation since it relegates membership in a “well regulated militia” to meaninglessness.  Of course, a simple bit of research would have pointed out that the militia was defined quite specifically by any number of founders.  For instance, George Mason: “"Who are the militia? They consist now of the whole people, except a few public officers."  Mason’s definition was widely agreed to by the vast majority of the founders as anyone who has read them knows.  And, of course, Article 1, Section 8, speaks to the training of the militia (‘well regulated’) and leaves that to the states, not the federal government.

So it was obviously the intent of the drafters of the Constitution that all be given the right to bear arms and that all who did formed the “militia”.  And that conforms well with how militias have been viewed throughout our history.  That takes a bit of steam out of Klein’s argument that the right is just as bad as the left (I challenge him to come up with quotes by the founders that would support the broad interpretation of the commerce clause the left prefers).

However, given the SCOTUS’s role, his main point remains pretty much in tact – putting a Constitutional reference on a bill isn’t going to mean anything much, since the Congress doesn’t get to decide what is or isn’t Constitutional. 

That said, I certainly don’t see any harm in such a cite because lawmakers will at least have to address the Constitution and their interpretation of its meaning by providing a cite and defending it.  If nothing else it will spark needed debate as each member introducing legislation must defend that legislation Constitutionally.  Certainly, as the government is structured, they won’t have the last word if the law is challenged later in court, but it may at least be a mechanism that keeps what most members, left and right, would consider overtly unConstitional bills off the floor and provide a basis for bi-partisan rejection of those that do reach the floor.

So all in all, I see some advantage to the measure.  That advantage is limited to be sure, but it is a step in the right direction to return the focus of the national legislature toward the founding legal document of the land.  And while the SCOTUS will continue to be the final word on Constitutional legitimacy, perhaps fewer “ObamaCare” type bills will be a result of such internal discussion and debate.  I don’t know about you, but I would see that as a very welcome change.

~McQ