Selective Constitutional Ignorance

Why is it that some parts of the Constitution folks seem to be okay with either ignoring or interpreting as they see fit, but others they seem to accept even when they disagree with it?

For example, many interpret Article I, Section 8, which specifies the powers of Congress, as they see fit.

Many completely ignore Article V: Amendment and seem to be okay with effectively amending the Constitution through the Supreme Court, rather than with approval of state legislatures.

Yet, while many people don’t seem to like it, they accept the method for electing the President (electoral college), rather than ignoring it or interpreting it to their liking.

We also respect the specified methods for electing congressman and senators, the latter of which was changed by the very amendment process (in Article V) that we ignore.

I just find it odd how people pick and choose which parts of the Constitution are to be followed and which parts are malleable.

My State of the Union Speech

Good Evening.

It’s good to see you all here.

We kept you relatively safe for another year. Regrettably, bad things happened. We’re not perfect. I wish we were.

But, let’s give a warm round of applause to the brave members of our military forces who kept the vast majority of us safe.

Now, go forth and enjoy your life, liberty and pursuit of happiness.

If I’m not doing something that you think I should, please consult with the Constitution and point me to where I’m empowered to do that.

See you next year.

Good Evening.


I heard about Constitutional law professor Louis Michael Seidman’s radical-sounding argument to ignore the Constitution though the general media. I thought he was a flake.

I must admit, when I began listening to this week’s EconTalk podcast and found out that he was the guest, I nearly turned it off.

I’m glad I was lazy enough to keep it rolling. I discovered that the impression I got of Seidman through the general media was wrong (surprise, surprise).

I also discovered that his conversation was remarkably similar to part of the discussion we had in the comments of my previous post Profits and Ballot Boxes.

And, I found I agreed with Seidman on quite a lot.

For example, Seidman doesn’t believe that the unconstitutionality of a government action is a valid argument against taking that action. He thinks we should discuss the merits of the policy and decide from there. I agree. I think the founders agreed, too, as evidenced by their inclusion of Article V: Amendment. 

I would add that this applies to government action that is constitutional. Just because an action is constitutional doesn’t make it right.

Of course, there are a certain group of people who should care about the constitutionality of a government action. They’re called judges.

However, I did disagree with Seidman on some things.

Seidman made a point similar to Wally in the comments (just before the 55 minute mark): the founders are not all-knowing so and it’s arrogant to assume they could think things through for generations hundreds of year after they wrote the Constitution.

I was surprised that Seidman — an advocate for discussing merits of issues — made this point. It doesn’t matter if the founders were limited in knowledge or lived hundreds of years ago. What matters is whether the Constitution (or a specific part of it) has merit. So,it seems reasonable to consider in the discussion of merits of government action why the founders were for or against those actions, rather than dismissing their positions outright. We might learn something. To commit my own fallacy, how many of us have written Constitutions that, by and large, have kept a country growing and improving for well over 200 years?

I do recommend listening to the podcast.

Recommended links

Is there something wrong with the Administration’s Constitutional vision? Ilya Shapiro thinks so. In the Wall Street Journal, he highlights three recent Supreme Court decisions holding government within the limits of the Constitution. What surprised me is that two of the decisions were unanimous.

From the piece:

As the world awaits the Supreme Court’s ruling on ObamaCare, there’s a larger story that the pundits are missing: the court’s rejection of the Obama administration’s increasingly extreme claims on behalf of unlimited federal power.

This term alone, the high court has ruled unanimously against the government on religious liberty, criminal procedure and property rights. When the administration can’t get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that’s a sign there’s something wrong with its constitutional vision.

I couldn’t agree more with Luigi Zingales’ observation, also in the Wall Street Journal, that increasingly the most talented aren’t getting ahead in the U.S. due to early stage crony cancerism.

Questions for Presidential Candidates

Below are some questions I would like our Presidential candidates to answer. I’ve pulled some of them from posts in my blog category, “Questions for Politicians“.

If you are a reporter who will have the chance to ask the candidates questions, please feel free to steal these.

If elected, you will take an oath to preserve, protect and defend the Constitution of the United States of America. Please describe what that means to you.

What does ‘freedom’ mean to you?

What process, or processes, are legitimate ways to change the Constitution and the scope of government?

Where does Congress derive its power to pass legislation?

Do you believe the powers of Congress are specific or do you believe Congress can pass any law it sees fit? Why?

Can you provide two examples of where you think the Federal government has exceeded its power in the past and why you think this?

Why do you think that the U.S. is the wealthiest country ever?

What criteria should be used to evaluate spending taxpayers’ money?

What criteria should be used to evaluate existing spending programs? Please provide an example of an existing spending program and the criteria you would use to evaluate its effectiveness.

Do you know what the knowledge problem is? Do you believe it’s real or imagined?

Can you explain how you believe wealth is created?

We’re all utilitarians now

Alternate title for this post: “That sounds like a good idea” government

When discussing what government should and shouldn’t do, it’s rare for anyone of any political persuasion to ask, “Does the government have the power to do that?”

That’s utilitarianism — justifying policies and actions on what we believe it will do for overall welfare or happiness.

Our thinking usually goes like this: “Send more people to college? That sounds good. Of course I’m okay with that.” “Help the poor? That sounds good. Of course I’m okay with that.”

Often, even the stuff that sounds good, isn’t good in practice. The “sound-good/feel-good” utilitarian policies often produce unintended consequences that cause more of the problem that they’re intended to help. But that’s a subject for another blog post.

This post is about how it doesn’t even occur to most of us to ask whether the government has the power to do whatever sounds good, or what would have to happen to give government that power.

Those should be the first questions we ask.

We treat it as a given that the country’s founders designed a government for that time and we live in different times.

We don’t consider why they tried to design a government to limit the power of government.

I had a couple recent conversations that I found interesting. They started as a discussion about my homeowners’ association and the following is a mash-up of those conversations plus a little staircase wit:

Me: My neighbors are fighting over fence placement. Officers of my neighborhood homeowners association have threatened to file suit, on behalf of the homeowners association, over the placement of a fence that a neighbor recently built.

I doubt the HOA’s claim will stand in court. The fence placement covenant was added to the covenants by the officers, but our covenants requires any covenant change to be approved by 60% of homeowners.

The fence-building neighbor pointed out the officers did not get that approval from homeowners to amend the covenants. I agree.

The officers contended that too few people show up at the annual meeting to get 60% approval for a change.

The fence builder contends that doesn’t matter. The covenant amendment process does not specify the approval take place at the annual meeting. They should have gone door-to-door to collect signatures to enact the change. I agree with my fence building neighbor again.

The other people:  I do too. It seems like a cut and dry case to me. That’s why I don’t live in neighborhoods with homeowner associations. You get those people who run those things for their own benefit. It’s okay for them to add something to their house, but not for you to do it. It just becomes about politics.

Me: Exactly. When they say it’s okay for their home addition, but not yours, that’s an arbitrary exercise of power. That’s picking winners and losers.

And you do live in a homeowners association — our big one: the Federal government.  The Constitution is like our homeowner association covenants. It defines what the homeowners association has the power to do and it also defines what needs to be done to change it.

In the Constitution, that’s Article V. My homeowners association covenant requires 60% of homeowners to approve a covenant amendment.  The Constitution requires  75% of state legislatures to approve an amendment to the Constitution.

The officers of my neighborhood home owners association took it upon themselves to amend our homeowners association covenants, much like how Congress and Presidents have taken it upon themselves to effectively amend the Constitution without Article V approval.

[This is a part I wish I would have said] They generally do this by misinterpreting two words in the Article I, Section 8 Powers of Congress: Welfare and Commerce. These words were intended to give Congress the power to keep the U.S. safe and settle trade disputes between states.

But, those two words have been misinterpreted over the past hundred years to give government power to do whatever sounds good.

And, so the Article V of the Constitution is short-circuited for the following test: Will this improve welfare? Sure. That sounds good.  Does this have anything to do with commerce? Sure. Okay.

The other people:  [They really did say this] Well, I’m not so sure about that.

Me: [I did say this] Well, then can you explain why we have Article V of the Constitution if Congress can do whatever sounds good? Don’t you think it makes sense to have a formal and somewhat democratic process, in a government for the people and by the people, to amend the governing documents? How’s that different from expecting my HOA officers to follow the covenants and get 60% homeowner approval before amending our HOA covenants?

The Living Constitution

In this post on the blog Marginal Revolution, Alex Tabborak cleverly points out that progressive argument that the Constitution is a living document collapses on itself when making the argument that it’s okay not to follow the Constitution since it evolved (i.e. we started ignoring it) around the time of the New Deal.

Because, if it’s true that the Constitution is a living document in the sense that progressives think it is, then what was good during the New Deal may not be good now.  The Constitution lives after all.

I posted this comment on Marginal Revolution:

I agree that the Constitution is a living document. But it gets its life from Article V – Amendment, that way it evolves with a democratic process, not necessarily with language, ideologies and power grabs.

I have yet to hear a compelling argument for why we would want to the Constitution to evolve outside of the process laid out in Article V.

“My job is to apply the law.”

This post continues the thread about the Constitution and the idea of better understanding the intended role of judges and the judicial branch of government.

Thomas Sowell writing about Supreme Court Justice Oliver Wendell Holmes in Dismantling America (p. 286):

Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society.  He had a very clear sense of what the role of a judge was — and wasn’t.

Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.”

That was because the law existed for the citizens, not for lawyers and judges, and the citizens had to know what the rules were, in order to obey them.

Legislators existed to change the law.

Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.”  If the law needed changing, that was what the democratic process was for.  Indeed, that was what the separation of powers in legislative, executive and judicial branches by the Constitution of the United States was for.

Another judge said to Holmes while riding in a carriage: “Do justice, sir.  Do justice.”

Holmes had the carriage stopped.  “That is not my job,” he said.  “My job is to apply the law.”

Wise words.

I should have failed civics

When I hear my local “fiscal conservative/social liberal” drive-time radio talk show hosts espouse the belief that the Constitution is malleable and left to be interpreted by the Supreme Court “for the times” and that the meaning of the Constitution changes with precedents set in Supreme Court decisions, I know we messed up somewhere.

It’s true that a lot people believe that. It’s also true that some Supreme Court Justices believe that (while others have not), as well as some constitutional scholars (while others have not) and many people who have served in government.

But, no matter how esteemed those are who believe it, the belief itself does not make it true. In order to prove their belief correct, they would need to produce evidence. Evidence would be specific passages from the Federalists papers or passages from the writings by the authors of the Constitution.

I agreed with the drive time radio hosts long ago in my life and I earned an A in my high school civics class.

But, on further reflection, that belief doesn’t make much sense.

Why separate government power into three branches — executive, law making (congress) and law enforcing (courts), but also give the law enforcing branch (courts) the power to make law (which is the power reserved for Congress)?

That’s the result of allowing courts to broadly “interpret the Constitution for times”.  That doesn’t sound like a power separation to me.

This makes even less sense when you consider the authors of the Constitution put a specific representative process in place to amend the Constitution if need be: Article V: Amendment.

I recommend for anyone who agrees with my local drive time hosts to read this week’s column from Walter Williams, What Our Constitution Permits.  Here’s an excerpt (emphasis added).

You might think, for example, that there’s constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: “Having considered the bill this day presented to me entitled ‘An act to set apart and pledge certain funds for internal improvements,’ and which sets apart and pledges funds ‘for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,’ I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated.”

Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.”

Here’s my question to any member of the House who might vote for funds for “constructing roads and canals, and improving the navigation of water courses”: Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?

I’m adding Walter’s final question above to my list of questions the media should ask political candidates.  They should also ask it of Supreme Court candidates as well.

The Constitution in 8 words

A frequent commenter on the blog Cafe Hayek, JohnK, asserts that political progressives tend to reduce the U.S. Constitution to the following eight words:

General welfare, regulate commerce, necessary and proper.

If this were the full extent of the Constitution it would give government the power to do just about anything it wants, or at least anything it can convince others that are necessary and proper for general welfare.

I know this is a bit a straw man.  After all, even progressives fall back on the Constitution when  government does something they don’t approve of like wiretap terrorists phones without judicial oversight.

But, generally people seem to accept arguments for government activity with smart sounding “greater-good” rationales (whether it actually is for the greater good or not, but that’s a blog post for another day).  For people to believe government is empowered to carry out such programs means people are viewing the Constitution as the eight words that JohnK highlights.

Even as a young liberal, my intuition told me that it made sense to constrain the politicians I supported so that the politicians I didn’t support would be constrained as well.  I personally didn’t care to give W the right to wiretap without judicial oversight because I knew someday someone else might want to use that same power.

Only later did I learn what is spelled out in my previous post and that my intuition had some merit.  The interpretation of the Constitution by judges, and the electorate, was not meant to change over time.  The Constitution was meant to change through the amendment process.

That view doesn’t fit the cosmic reasoning of some people, like E.H. Allen commenting on this column by David Harsanyi (HT: Don Boudreaux) in the Denver Post:

George Dennison, retired president of the University of Montana, was my Constitutional History professor at Colorado State University. He would often say in class, “the beauty of the constitution is its eternal flexibility. Its ability to adapt to changes in time without having to amend the document several hundred times”. I agree with Dr. Dennison. 

We cannot survive constitutionally if the document is burdened with pithy detail.  We rely on the good and honest judgment of the nine men and women who sit on the Supreme Court to protect the American people from executive and legislative excesses.

I disagree with E.H. and Dr. Dennison.  The last sentence means that E.H. would like to give arbitrary powers to the Supreme Court and trust them to decide whether an action by executive branch or legislature is excessive.

I’m not so generous.  All I want the Supreme Court to do is decide whether something is lawful or not.  If we have a problem with the way the law is written, then by all means lobby the legislature to change it.  That’s the branch of government that actually has the power to write laws.