Unconstitutional Part II

Julian Sanchez agrees with me and explains why very nicely.  Here he is commenting on the surprising result of Federal judge on the Obamacare health insurance mandate:

It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

Years ago, my mom told me that two wrongs don’t make a right.  Turns out she was right.  Believing that two (or more) wrongs make a right is a logical fallacy. We’ll see if the Supreme Court agrees.

My guess is the Supreme Court decision will be split along ideological lines, unsurprisingly.  Here’s why.  Those on the left believe the Constitution is a living document that allows judges to interpret it however they see fit.   And often they will support a judges rulings that support this viewpoint with arguments that look very much like the ends justify the means.  We like the result of the ruling so let’s not worry about whether it is correct or not.

Those on the right also believe the Constitution is a living document.  However, the judges on the right generally do not believe the judicial branch is empowered to give the Constitution its breath.  They are not empowered to interpret the Constitution how they see fit.  They believe their job is to apply the law.

Granted, some interpretation will be involved in applying the law, especially on something like the Commerce clause.

But, those on the right tend to start with what was intended when the law was written and work their way from that when testing if something is lawful or not.

Those on the left tend to begin with the result they desire and work their way back from there to find the interpretation that enables that result.

Those on the right also believe the breath that makes the Constitution a living document does not reside with the Judicial branch.  Rather it resides in Article V of the Constitution: Amendment Process.    If you’d like to alter the scope and balance of government powers, great.  Use the amendment process to do so.

1 thought on “Unconstitutional Part II

  1. Concentrating on the advent of government and the advent of redistribution to create the protective society, ultra minimal state, minimal state…….at what point does the redistribution notion, at a very low level of redistribution required for the minimal state, become morphed into hyper-redistribution on the way to creating state and utopia/dystopian? Its when the side constraints of a minimal state “constitution” are circumnavigated.


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