An Honest Question for Lefties

Tuesday, December 14th, 2010

First, read Julian Sanchez on the health care mandate and the Commerce Clause.

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Think about what it means.  We have two parties who have rigged the game to ensure that someone from their ranks wins every election, nearly every time. And every 10 years, they gerrymander the districts so as few of us as possible even get that choice. All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.


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191 Responses to “An Honest Question for Lefties”

  1. #1 |  Njorl | 

    The question here, is essentially the equivalent to, “If you went outside in the middle of winter stark naked, do liberals think you wouldn’t get cold?”

    No, of course you’d get cold, that’s why you wear clothes.

    The Constitution without the Bill of Rights (and subsequent amendments) is a prescription for a specific type of tyranny. It simply defines the structure that tyranny would take. The authors of the original document were naive enough to think that good men like them would not be tyrants. Fortunately, wiser heads, (more cynical and less impressed with their fellows) pevailed.

  2. #2 |  Rob in CT | 

    Not seeing something as “holy writ” != “laws have no meaning.” That’s an exaggeration of my position. But I’m sure it felt good to type, along with the internet tough-guy stuff about burglary.

    Some more thoughts on Federalism and Healthcare, take ’em or leave ’em:

    Perhaps if the “states rights” argument hadn’t been so badly misused in the past (for example: to protect the right to enslave millions of people, demand the expansion of that system and, later, to set up & protect “Jim Crow”), the concept would have more appeal now. Historically, the Federal government has been, at times, a positive force for freedom, as against State governments that were oppressive of their citizens (or non-citizen residents). That history matters, if one is to try and understand how we got where we are, here in 2010.

    I do not think that lack of health insurance rises to the level of slavery or Jim Crow and therefore, as I said before, am not “outraged” at the possibility that the HCR bill ends up being struck down as unconstitutional. I don’t like the law much anyway.

    Regarding rationing, I think it’s important to remember that any healthcare system will restrict treatment. A pure free-market system would ration by personal wealth. Got the money? You get treated. No money? No treatment. Of course we don’t have that, as we have a mish-mash of regulated private insurance and governmental programs. Not all care is denied to the uninsured/destitute (ER care isn’t, and then the costs are passed on to the rest of us anyway). So yeah, the status quo is crap (not that I think libertarians would disagree w/that!).

    A pure socialist system would treat everyone the same, but would ration via some sort of cost/benifit analysis of treatment options. Or, if you prefer, “death panels.” It is my understanding that several countries have hybrid systems that provide a certain level of care for all but allow those with the money to buy supplemental coverage. That seems like a reasonable compromise to me. It’s certainly better than our status quo. It’s also, no doubt, unconstitutional to an originalist.

  3. #3 |  Alex | 

    151-
    “The authors of the original document were naive enough to think that good men like them would not be tyrants.”
    You have no idea what you’re talking about.

  4. #4 |  Njorl | 

    Alex, I do. I should have said that they didn’t believe good men like them would not need to have prohibitions against tyranny so explicitly spelled out. Those fools who thought the Bill of Rights was not necessary were, indeed, extremely naive.

  5. #5 |  Graham Shevlin | 

    Radley, please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”. It reveals that you are (a) stuck in the world framed for you by the media where there is a left-right dichotomy, and (b) you’re being intellectually lazy and would rather talk in slogans.

  6. #6 |  Cramer | 

    Maybe we should put it this way:
    Conservative and/or Republican President X has read and/or received testimony that communities that issue concealed weapons permits have demonstrably lower rates of violent crime (never mind if that is a universally accepted view or not; the president has logged plenty of evidence to support his point of view and uses that to dismiss those who oppose that view).
    Considering this trend means communities are inherently safer, and that it is not a stretch to assume that less violent crime leads to less need for emergency and medical services, then the right to carry a concealed weapon also saves Americans considerable money in public services and yes, health care.
    So, conservative/Republican President X pushes for a federal mandate that every American must purchase a weapon and must have said weapon on their person at all times – and he uses the commerce clause to justify this.
    Is that different than mandating people to buy insurance? Before anyone even starts, yes I know it’s a ridiculous scenario – but 50 years ago the idea that the government would force you to buy insurance was ridiculous as well.

  7. #7 |  Steve Verdon | 

    Herb,

    Even if I was going to do ‘X’ the fact the government also demands that I do on pain of suffering does not remove the coercive element to the nature of government. And it isn’t that people are being “principled shirkers” it is that after looking at the situation…the complete situation they might decide not to buy health care but instead prefer to spend that money in other ways. That they can free ride and makes that decision much easier isn’t a clarion call for more force and coercion but for a rethink of the current policies that allow for the free riding in the first place.

    Our health care system needs a serious overhaul/reform, but the current law will not accomplish that, if anything it will make the situation worse, and allow for even more government control of our lives.

    Hmm, not sure I get this. When I pay my premium, I’m not redirecting YOUR money anywhere. But when you show up at the hospital with no insurance….you’re redirecting MY money towards yourself. Right?

    Insurance in a way works like a subsidy. Basically a group of people (a large group) will be able to determine who will get sick and how much it will cost (there is a fair amount of heavy duty math here with things like the law of large numbers, etc.). Now you take those costs for that group and divide it by the number of people in group and that is your premium. Coverage is typically less than 100% due to moral hazard. So in effect, insurance is where the healthy pay for the care of the sick. A priori since nobody knows who is going to be sick it works to everybody’s best interest.

    That is, the market version of insurance. Problem is that if you are a pre-existing condition you are no longer able to participate in that market because of the certainty engendered by the pre-existing condition. You can’t get insurance because you are already sick. Now, we could subsidize the care of these people. Problem is we don’t just subsidize them…we subsidize healthy elderly people, health young people, and so forth. And the government’s objective function is different than that of a profit seeking firm. A profit seeking firm in maximizing profits also minimizes costs. Government on the other hand has no such constraints.

    I know, I know you’ll claim that Medicare is cheaper than private health insurance in terms of administrative costs. However, you have to account for the fact that Medicare shifts some of its costs to other government agencies. Also, private health care firms spend considerable of money looking for people with pre-existing conditions. Medicare does not. While that may sound bad, for people currently getting health care that has a benefit of reducing their premiums. Then there is also fraud detection. I’d be curious to see which spends more and which is more effective. In other words, taking the basic data and constructing simple statistics may give a misleading picture.

  8. #8 |  M. Simon | 

    A pure socialist system would treat everyone the same

    Such a system has never been observed in the wild. Look up “nomenklatura” for more details.

    My point of course is that laws have meaning. Once you start abrogating meaning you are not far from abrogating law.

    Nice try though.

  9. #9 |  greg | 

    Herb,
    I’m starting to see your point. Let me make the analogy to the GM bailout. The ultimate goal was to get money into GM, from the government. This could be done by taxing the population and giving GM the money, or it could be done by simply saying to the population you have to spend that same money on a vehicle. there is nothing inherantly different betwen those two scenarios. In both cases, I’m out my cash and GM gets a better looking bottom line.

    The correct answer is they are both unconstitutional, but Herb is saying that since we’re already past the point where giving money directly to private industry is in question, it shouldn’t matter how the government OBTAINS the money. And he’s right, whether its called a tax, fine, penalty, or mandate doens’t matter….what matters is what the money is being used for after words.

    As for this…
    “Even in the worst case scenario, no one’s going to jail for not buying health insurance. You’ll be assessed a tax and if you don’t pay the tax, then there may be penalties but even then, jail time is unlikely”

    You can’t be serious. What, the goverment is just going to tell me to forget about it when I tell them I’m not paying. Trust me, people will end up in jail over this…..they’ve ended up there for much smaller infractions in the past.

  10. #10 |  Travis Ormsby | 

    Desiderius says:

    “You’re confused because you evidently weren’t paying attention in civics class when the doctrine of enumerated powers was discussed. I wonder how many lefties would now support the abrogation of that doctrine if they were actually aware of the issues involved?”

    Well, in the AP US Government and Politics class THAT I TEACH, the lesson goes something like this:

    Article 1 section 8 lays out all the powers of the Congress. Pay close attention to the commerce clause and the necessary and proper clause. In a society where basically all human activity is considered economic, there is precious little that is outside of the scope of these two clauses when taken together.

    So while section 8 can be considered a “white list” that constrains federal federal power as opposed to the “black list” in section 10 that constrains state power, it’s a white list on which essentially all human endeavors have been placed, so it does a pretty poor job of actually constraining federal power.

    So why don’t we have a totalitarian federal government? Well partly because of some “black list” things in section 9, but mostly because of the the Bill of Rights, and the 14th amendment.

  11. #11 |  Nick T. | 

    So it seems like the answer to Radley’s question, as I would have guessed, is that according to progressives, there are no limits on the legislative powers of Congress other than the Bill of Rights, and things that are super explicit like “Bills of Attainder.”

    It’s a good question though, and it is important for people who agree with the mandate’s Constitutionality (if not its policy benefits) to recognize thay have ceded essentially the entirety of Article I Section 8 as an empty formality, a mere guideline.

    This is all fine, and there is nothng wrong with this view at all but people who feel that way should come to grips with it and own up to it, and be prepared to apply this view cosnistently to other issues. This conversation is a good one and shows people can have multiple reasonable interpretations of the Constitution, but I always feel people – individuals that is – should strive to have their own consistent and coherent interpretation of the Document and its different parts. Thats the foundation for a better system of governance and dialogue.

  12. #12 |  Radley Balko | 

    Radley, please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”.

    I was directing a question specifically at people who hold leftist political views. Dozens of people holding those views responded. Seems pretty clear that I accurately directed my question at its intended target, and that the intended target understood it as such. What word would you prefer? Do you also think it’s lazy and peurile [sic] to direct a question at “conservatives”?

    Also, I think you need to look up the definition of ad hominem.

  13. #13 |  RagnarD | 

    ….please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”.

    Okay, how about this? Fascists, here is the question for you, the real one…..

    Do you understand that the 1st & 2nd Amendments are immutable? The 2nd ensures the 1st? You can try and force this radical righty to do lots of things but he protects his own rights with the 2nd. So, ….. sod off.

  14. #14 |  delta | 

    One other thing I’ll drop in here (quote from AP article today):

    As a presidential candidate, Obama opposed the individual requirement as too costly for the average household. He embraced it after it became the only approach that could pass both the House and Senate. The legislation also provides tax credits to make premiums more affordable.”

    When I voted for Obama, part of what I was voting for was not having a private health insurance mandate. It was actually about the only issue where I felt he had an advantage over Clinton. So — definitely not outraged by the Hudson ruling.

  15. #15 |  delta | 

    Source: http://news.yahoo.com/s/ap/us_health_care_plan_b

  16. #16 |  delta | 

    #123 | red: “It is historical revisionism to not recognize that the entire world accepted slavery when the Constitution was adopted.”

    What the fuck? No, not remotely.

    “In Western Europe slavery largely disappeared by the later Middle Ages.[67] The trade of slaves in England was made illegal in 1102.[68] Thralldom in Scandinavia was finally abolished in the mid-14th century.[69] Slavery persisted longer in Eastern Europe. Slavery in Poland was forbidden in the 15th century; in Lithuania, slavery was formally abolished in 1588; they were replaced by the second serfdom. In Kievan Rus and Muscovy, the slaves were usually classified as kholops. Slavery remained a major institution in Russia until 1723, when the Peter the Great converted the household slaves into house serfs. Russian agricultural slaves were formally converted into serfs earlier in 1679.[70]…”

    Source and footnotes here: http://en.wikipedia.org/wiki/Slavery

  17. #17 |  freedomfan | 

    Travis Ormsby:

    Well, in the AP US Government and Politics class THAT I TEACH, the lesson goes something like this:

    Article 1 section 8 lays out all the powers of the Congress. Pay close attention to the commerce clause and the necessary and proper clause. In a society where basically all human activity is considered economic, there is precious little that is outside of the scope of these two clauses when taken together.

    So, do you teach what the words in the clause meant at the time they were ratified? E.g., that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms? I wonder how many students look at that clause and assume that the modern notion of regulation as deciding and enforcing rules about any aspect of an activity was what the people who ratified the document had in mind. In the context of the debates at the time, the interstate commerce clause was pretty clearly intended to ensure that states didn’t develop a mishmash of protectionist rules and tariffs to benefit their industries. That goal was furthered in article one section nine, subsection five.

    Not to mention that the clause allows legislation regarding actual interstate commerce, not regarding every activity that has any conceivable impact on commerce, which, as you note, would be all activities. This is why Radley’s question is a probing one: Why bother writing a constitution delegating specific powers to the federal government if the intent is to grant unlimited powers? That would be a good question to pose to students when discussing the commerce clause. I think it’s beyond dispute that the Constitution never would have been ratified if the states thought it allowed federal government the broad authority later read into it in such cases as Wickard, much less Raich. So, it seems odd to claim that the document was understood to grant such broad power, when the debates of the time didn’t claim that it did and it wouldn’t have been ratified had it been understood that way.

  18. #18 |  delta | 

    #167 | freedomfan: “So, do you teach what the words in the clause meant at the time they were ratified? E.g., that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms?”

    I don’t agree with either one of you guys above, but I’ll pick on this. I am enormously skeptical of these “words don’t mean what you think they mean” re-interpretations. Exponentially so in this case because I also hear NRA aficionados claiming that the “regulated” in the 2nd Amendment means “well equipped and armed”.

    Please cite a source for this claim (quote, name, link) or I will continue to disbelieve the “redefine the words” brigade.

  19. #19 |  Graham Shevlin | 

    In reponse to Radley’s question: Yes, I would have objected if the article had begun with “righties” or “conservatives”. Both as lazy in their own way as “lefties”.

  20. #20 |  freedomfan | 

    I hesitate to look up citations for people in blog comments, especially since past experience supports the concern that “I won’t believe you unless you show me a cite” really means “no matter what citations you give, I will continue to believe what I believed before.” And, of course, that concern isn’t exactly allayed by people in this thread claiming (or pointedly ignoring challenges to the claim), basically, that the constitution goes through the trouble to outline a narrow set of powers for the federal government and then turns right around and gives it unlimited power in one sentence. One doesn’t need a scholarly source to see that claim isn’t especially sensible.

    However, I will give you a citation of a law professor who has written referred journal articles on this very subject as well as scholarly books and I hope that you read it. Randy E. Barnett (professor of legal theory at Georgetown University) “The Original Meaning of the Commerce Clause”, vol 68, University of Chicago Law Review pp. 101-147 (2001). U of Ch Law Review has it’s archives on a pay for access site, but Barnett has the article available as a PDF file.

    BTW, the term “well regulated” in the 2nd amendment uses the word regulate in the same sense of “to make regular” that I used above. That is, the need for a well regulated militia couldn’t be met if some militia members were equipped with rifles and some were equipped with rocks and sticks; such an irregularly equipped (equipped with vastly different weaponry) force would not be adequate to its purpose.

  21. #21 |  theBuckWheat | 

    We have gotten ourselves in a very sad condition. The judiciary has enshrined precedent to such an extent that it has “precedented” much of the restrictions on enumerated powers out of the Constitution. Indeed, it appears that the real Constitution has been exiled and replaced with a nullified shadow. This is not a far out subject, for I recall no less than Senator Schumer worried enough that some people might hold that opinion he asked John Roberts about it during his confirmation hearing.

    Worse, while the judiciary still recognizes expansive protections favored by liberals (er, “progressive”) such as abortion and free speech in the form of “art” and flag burning, it is happy to expand any government power having to do with the environment or with money. The Commerce Clause is like one size fits all panty hose. An interstate nexus was the basis for Wickard. If we can find interstate commerce in your field of wheat, we can find it in your toilets, shower heads and light sockets too!

    The only recourse, I fear, is that the States are going to have to retrieve and revive their lost powers through a Convention. We must do something before the ever-expanding Federal Leviathan State throws us into debt serfdom. I don’t have much hope that Congress will pass any Constitutional Amendments like the one proposed by Randy Barnett. However, stranger things have happened, like the experiment of Prohibition.

  22. #22 |  Herb | 

    @Challeron:
    “in losing my job I lost my health insurance; but I couldn’t buy an individual health insurance policy from anyone — even though I could afford it — because I have a “pre-existing condition” ”

    Hmmm…seems like you shouldn’t have that problem in the near future, since Obamacare effectively made “pre-existing conditions” a thing of the past.

    Also, that you have a nice, helpful doctor is awesome. But understand that’s a rarity and many doctors don’t care if they have to fill out more paperwork…if they make more money. (More money=hire someone to fill out the paperwork.)

    @ Steve Verdon

    “I know, I know you’ll claim that Medicare is cheaper than private health insurance in terms of administrative costs.”

    Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

    What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

    People who benefit from insurance pools without contributing now must contribute. So what’s the problem with that?

  23. #23 |  cApitalist | 

    #150:
    “If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.”

    There you have it ladies and gentlemen, with one post Fargus has put to rest all the arguments of Spooner, Hoppe, and Rothbard. It is simply bullshit. So speaketh Fargus.

  24. #24 |  An Answer to Radley Balko’s “Honest Question” About What Constitutional Limits “the Left” Accepts – Left Blog Feeds | 

    […] at The Agitator, Radley Balko says liberal outrage over Judge Henry Hudson’s ruling that the individual mandate is un-Constitutional […]

  25. #25 |  What Can’t Congress Do Now? | 

    […] It’s a question I noted Randy Barnett asking a few months ago, with some added salience now that a federal judge has ruled the individual mandate unconstitutional. Others have been asking similar questions, including Megan McArdle and Radley Balko. […]

  26. #26 |  Steve Verdon | 

    Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

    If a private firm does this…its bad (monopsony power), but the government…why it is a good thing to transfer wealth from one group to another! Yippee!

    What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

    The problem is that the current reform wont preserve anything it will just bring the day of reckoning closer to realization. The cost containment measures in the reform legislation have largely been measures Congress could have taken, indeed was supposed to have taken ever year for something like the past 10 but has passed on it. Now is going to be different with even more draconian containment measures? I don’t think so…the chief actuary of Medicare doesn’t think so, and neither does the CBO.

    If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.

    And war is peace, freedom is slavery, and ignorance is strength, you forgot those Fargus.

  27. #27 |  Yglesias» Chin-Strumming on the Constitution « Politics | 

    […] law” is 97 percent pointless, but as an intellectual exercise here’s aquestion from Radley Balkoand an answer below the […]

  28. #28 |  Challeron | 

    Herb@172, you’re missing my point: I won’t be getting Obamacare, because I can’t pay for it, and the Feddle Gummint can’t tax my income because I don’t have any. (I don’t own any Real Estate either.) But, more to the point, I’m still seeing the doctor that I chose, by paying cash, rather than being forced to some mall-kiosk-based McDoc, which is all that any of us are likely to see after Obamacare finishes off what Medicare started, i.e., making quality medical care unprofitable.

    Weren’t you commenting, upthread, that the Greedy Bastards (or words to that effect) could damn well go broke, and we’d import the finest medical minds from overseas? My doctor has already suggested to me that he’s going to stop taking Medicare/Medicaid patients, because da Gummint doesn’t seem to think that actually paying for the care of said patients is important to them (“Doctor’s Fix”? When we’re the only game in town? You’re kidding, right?); and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment, then I guess we won’t have to worry about any Death Panels anyway….

  29. #29 |  All-American Bears | Just Above Sunset | 

    […] But here’s a question from Radley Balko: […]

  30. #30 |  Herb | 

    “I won’t be getting Obamacare, because I can’t pay for it, and the Feddle Gummint can’t tax my income because I don’t have any.”

    Well, I’m not sure what to tell you. I would say, however, that your situation –being able to afford paying out of pocket despite having no income– is, if not unique, quite rare.

    I also find it hard to believe your doctor is refusing Medicare patients. Even the estimable Dr. Rand Paul doesn’t do that. Not only are those patients in need of care, but Medicare money spends just as good as “Negotiated with Challeron” money. (Besides…if I were your doctor, I’d ask who is the more attractive customer: the guy with no income and no insurance? Or the Medicare patient whose ability to pay is backed by the full faith and credit of US government? That answer should be obvious.)

    As to your fears of this:

    “and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment.”

    Not gonna happen. You know why? Because when “doctors leave the profession,” what are they going to do with all that medical training? Use it to become a stockbroker?

  31. #31 |  delta | 

    #170 | freedomfan: “However, I will give you a citation of a law professor who has written referred journal articles on this very subject as well as scholarly books and I hope that you read it. Randy E. Barnett (professor of legal theory at Georgetown University) “The Original Meaning of the Commerce Clause”, vol 68, University of Chicago Law Review pp. 101-147 (2001). U of Ch Law Review has it’s archives on a pay for access site, but Barnett has the article available as a PDF file.”

    Also familiar with wasting my time in spurious blog posts, this is why I was careful to define citation above as “(quote, name, link)”. I’m not going to waste my time reading a 50-page article on the off chance that you’re not lying and there’s some tidbit I can filter out that is on-topic. It’s never succeeded in the past. If there’s actually something on-topic therein, it should be a simple matter to quote one or two sentences (look above for several examples where I did that in this thread).

    Otherwise, I’m forced to assume that you’re blowing hot air.

  32. #32 |  Travis Ormsby | 

    Freedomfan says:

    “Not to mention that the clause allows legislation regarding actual interstate commerce, not regarding every activity that has any conceivable impact on commerce, which, as you note, would be all activities.”

    Well, I think this is clearly a case where you are substituting your understanding of the commerce clause for the Supreme Court’s understanding. While it may be the case that your understanding is better, it doesn’t matter. The Court’s rulings in Wickard and Raich indicate to me that the Court believes the power of the commerce clause extends to things that are related to or have an impact on interstate commerce without actually being interstate commerce.

    That’s why I teach it that way. Whatever understanding the framers may or may not have had about what “to regulate” means doesn’t really matter. What matters is how the current Court interprets those words, because that’s the interpretation that governs state action. And it seems foolish for me to assume a different meaning. I would effectively be telling the Court that my understanding of what the Constitution means is better than their understanding.

    I’m certainly not enough of an expert to feel qualified to make that claim. I doubt you are (although maybe you are). Even a guy like Randy Barnett, who probably is so qualified seem to want to argue not that the Court’s previous interpretation was wrong, so much as that interpretation doesn’t apply to the Affordable Care Act and a different rule should be used to rule it unconstitutional. It’s important to note that big shot lawyers who are by no means lefties (Orin Kerr, for example) appear to view this as a losing argument.

  33. #33 |  Radley Balko | 

    I’m not going to waste my time reading a 50-page article on the off chance that you’re not lying and there’s some tidbit I can filter out that is on-topic.

    So you demand that he provide you with a citation. And when he provides one, you refuse to read it because you think he’s probably lying?

  34. #34 |  Brandon | 

    Damn it’s sweet when Radley gets involved in the comments. At least if you’re someone who tends to agree with him. If not, I assume it probably stings a bit. And Herb, your arguments have become entirely incoherent.

  35. #35 |  delta | 

    # #183 | Radley Balko: “So you demand that he provide you with a citation. And when he provides one, you refuse to read it because you think he’s probably lying?”

    Yes. A short quote is both a reasonable expectation and the standard way of providing a citation. I’ve been lied to too many times on the Internet, sent on a wild goose chase for nothing (sometimes 800-page books), to waste time that way again.

    Just provide a short, on-topic quote; it should be very easy. Why be aggressive in response?

  36. #36 |  delta | 

    Okay, since Radley took an interest I’ve dug into this non-searchable/non-copyable PDF and spent time reading & typing up quotes from it myself. Note that freedomfan’s claim upthread was “that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms?”, and this law review article is what he offered to support that.

    First, the phrase “to eliminate irregularity” appears nowhere in the 50-page article. Second, at no point does the author claim that the meaning of “to regulate” has changed over time. Third, the section on “The Meaning of ‘To regulate'” (p. 139-146) has as its entire purpose the question of whether “to regulate” includes the ability “to prohibit” (for example, in the case of drug-use laws):

    Samuel Johnson defines “to regulate” as “1. To adjust by rule or method… 2. To direct” In other words, the term “to regulate” means “to make regular”. The power to regulate is, in essence, the power to say “if you want to do something, here is how you must do it.”… The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then is a set of rules that tells people, “If you want to trade or exchange with others, here is how you must go about it.” [The Original Meaning of the Commerce Clause, p. 139]

    The author also ties this to the 2nd Amendment, again counter to what was claimed upthread, that militias can be governed by rules, but not prohibited entirely:

    That the Constitution uses the term “to regulate” in this sense is made plain by the Second Amendment, the first portion of which reads, “A well-regulated Militia, being necessary to the security of a free State.” A “well-regulated” militia is not a prohibited militia but one that is well drilled. [The Original Meaning of the Commerce Clause, p. 141]

    So, in conclusion: Was freedomfan looking at the article in question when he offered it as a source? No. Does it say what he claims it said in regards to the meaning of “to regulate”? No, actually it says the opposite. Does this turn out to be the case every time someone equivocates over providing a short quote for their citation? Yes, it does.

    Congratulations, freedomfan, you win by once again getting me to read an article which you did not look at in order to verify that it doesn’t say what you claimed it did.

  37. #37 |  freedomfan | 

    Jeez, delta, after complaining about how I must be lying for not providing you a quote, you read the article wherein the author says

    […] “To regulate” generally meant “to make regular” – that is, to specify how an activity must be transacted – when applied to domestic commerce […]

    And, if I recall, I said above that “to regulate” held the connotation of “to make regular”. I guess I should apologize since, before I was asked for a citation and reread the article (which I obviously didn’t have in front of me earlier), I added what I thought would have been a helpful rephrasing that the author doesn’t use. However, I think I supported the basic claim that “to regulate” meant “to make regular”.

    And, btw, though the author goes into to detail to conclude that “to regulate” == “to make regular” in the longer body of the article, you only had to read the single-paragraph abstract to see it. Maybe it was expecting too much of you to click on the link I provided and read the abstract instead of me typing it in.

    Now, I’m not sure where you have shown that the meaning the author describes “says the opposite” of what I said, since I don’t see anything the author says that I disagree with…

    [Rereading my earlier comment] Oops! Now I see where I screwed up. In the earlier post, I was trying to say that today’s students probably assume that the interstate commerce clause give the feds the power to decide and enforce rules “about any aspect of any activity”, but I instead said “about any aspect of an activity”. And, yes, that is contrary to the definition Barnett comes up with, and I agree with his definition. I am a crappy typist, but I should have proofread that more carefully. Sorry. And, I’m doubly sorry if that was the crux of this disagreement.

    To be clear, I was responding to a comment that I took to imply that the interstate commerce clause does allow the feds to make rules about virtually any aspect of any activity. Though I may not have phrased it clearly, my understanding of the history of the commerce clause is that the interstate commerce power was there largely to prevent the states from imposing tariffs on the goods of other states that crossed their borders and from generally legislating rules that would hurt trade between the states. It’s really the broader New Deal-era reading of “commerce” than “regulate” that is more important here (as I’m sure you know, since you read all of Barnett’s piece, which goes into detail on what “commerce” meant).

    Back to the subject of this thread, the bit of Barnett’s article you quoted notes that the power to regulate something is not the power to prohibit it. I think that undermines current use of the commerce clause to justify federal bans on various substances, contra the poorly decided (IMO) Raich ruling. I’ll admit that I don’t have any cites on hand that specifically address whether the commerce clause can be used to prohibit a citizen from not engaging in commerce. But, I think making the case that the CC doesn’t empower banning an activity would at least be helpful in making the case that it doesn’t empower banning a non-activity.

    BTW, I did read the article I pointed you to. I am sorry I misspoke regarding “any” vs. “an”, though I the article does confirm the “regulate” == “make regular” statement, which is what I thought you were questioning in your earlier post. I think that posting a link where reading the first paragraph of a cite would substitute for retyping the paragraph is reasonable, but you are welcome to insist on someone typing in the quotes.

  38. #38 |  freedomfan | 

    Travis Ormsby, of course my view of the Commerce Clause differs from the view of the majority of the current Court’s. However, it’s tough to read Lopez without thinking that my view isn’t completely anathema to the Court, at least from time to time. And, FWIW, as accurate as it is to say that folks like Barnett argue that previous rulings such as Wickard are wrong, it’s just as accurate to say that he is arguing that other previous rulings such as Lochner, Adair, etc. are right. That is, it’s as apt to say the limited-Commerce-Clause people are arguing that the Court is currently wrong and it has been right at other times as it is to say those folks are arguing that they are right and the Court is wrong. It’s not quite as simple as elevating one’s own judgment above the Court’s.

    (BTW, I don’t mean to imply that I know Barnett’s exact thinking on those cases. It may well be that, for instance, Barnett thinks that Lochner is quite flawed.)

    But I agree that the current Court’s reading of the Commerce Clause is what limits state action (or doesn’t limit it, as the case happens to be) and you are perfectly correct in teaching that interpretation. Obviously, the current position of the Court will be most important in a contemporary government class.

    However, debates over these issues are themselves contemporary and it would be useful for students to have some understanding of where the basis for the opposing arguments rests. I mean, I’d hope the kids come away with better tools for engaging these issues than just assuming that the current Court interpretation is all that matters. That’s particularly important in terms of their understanding Court nominee confirmation hearings, which may change the Court’s interpretation; understanding that the Court interpretation wasn’t always what it is today (e.g. the pre-Wickard, Lochner-era Court saw things very differently); understanding cases like (as mentioned before) Lopez and Morrison, where it looked like the Court was re-examining the everything-qualifies-as-interstate-commerce position, and Raich where it ends up looking like they once again see plenary power in the commerce clause; and understanding the current lower-court cases that will eventually get to the Supreme Court and potentially provoke another change in interpretation of what constitutes interstate commerce.

    (Actually I take back the comment about there being any need to understand confirmation hearings. Those are so tightly scripted as to be near-worthless.)

  39. #39 |  delta | 

    Freedomfan, I do agree with the larger point that the Commerce Clause has been overextended in more ways than one. Thanks for the respectful and attentive reply, do appreciate it.

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