Monday, September 19, 2011

Progressive's Defense of the Constitution: What the...?

I was reading Lucy Steigerwald’s Hit & Run post over at Reason about the effort by Progressives to rebrand themselves as the true guardians of the constitution, its original meaning and the true intent of the Founding Fathers. These individuals have obviously seen the Tea-Party as gaining traction with their call for a return to a limited Federal government bound by the Constitution. I spent part of the weekend reading through their articles and blog posts which are attempts to paint the Tea-Party as idiots who do not actually understand the Constitution, but also to show Progressives as the “true believers” guarding the real intent of the Framers, and this website is supposed to be some sort of guide for refuting the notion of being able to limit the grand construction of the Progressive welfare state with the Constitution. It seems to them that if the Founders were magically transported to the present day, given the opportunity to look around and learn about all the special and unique problems we face today they would all sound out in unison: “Yeah, you guys got it right, this is what we intended the Federal government to look like”. While I will agree that many within the Tea-Party need to have external fact checking on some of their notions of the Constitution, this site’s attempt to rebrand the argument so that Progressives are the true defenders of the faith and protectors of the original intent of the constitution is more than a little ridiculous given their history.
In reading through their “Strange Brew” section you see quite a few attempts to refute Tea-Party notions of limiting government power through the constitution. Most all of the articles use a sort of circular logic to state that the Progressive version of the state is proper and fundamentally constitutional simply because Progressive members of the Supreme Court have said so. In attempting to refute that the 10th Amendment should impose some sort of limit on the power of the Federal government they quote the court as saying that the 10th is “a truism that all is retained which has not been surrendered”. For whatever reason (a simple mistake?) they attribute this quote to the wrong case. They cite UNITED STATES V. SPRAGUE, 282 U. S. 716 (1931) which does speak to the 10th, in so much that it does not change the specifics of the amending provisions of the constitution. The quote actually comes from UNITED STATES V. DARBY, 312 U. S. 100 (1941), from Harlan F. Stone’s written opinion that finally removed the barriers to the New Deal Fair Labor Standards Act of 1938. As most should know, the Supreme Court had been a constant thorn in FDR’s side, overturning most all of the New Deal based on a century’s worth of precedent. It was not until his attempt to destroy the court with the Court Packing Scheme that they relented, making way for the Progressives to implement what they thought were the proper set of policies. See the argument here: the 10th Amendment is a meaningless truism that cannot impede the implementation of Federal law, because a Progressive justice, on FDR’s 1941 Supreme Court, said it was a meaningless truism that cannot impede the implementation of Federal law. Not really a sound foundation to build your case on. This is the way most of the articles run.
Over and over you keep seeing something along the lines of “To be sure, the powers of the federal government under our Constitution are not unlimited” but nowhere in any of these article do they define these limits, or what they would actually be. They continually repeat the logic of the “necessary and proper”, Supremacy Clause and the Commerce Clause to reinforce the notion that everything done and proposed by Progressives is in fact constitutional and within the intent of the Founders. These three clauses have always caused the most debate within the conversation about what limits the Federal government actually faces (if any). Once again the logic seems very circular in their constitutional defense. One of my favorites is of course the defense of the Health Care overhaul in which they state: “The crucial power to “make all Laws which shall be necessary and proper” (art. I, §8) for carrying out all constitutional powers granted to the federal government, which means, for example, that Congress can require individuals who can afford it to obtain health insurance in order to carry out its authority to regulate the interstate health insurance industry and ensure affordable, non-discriminatory health care.” So, in essence, the Federal government’s power under “necessary and proper” is unlimited because we get to the same age old problem of defining “necessary” and ignoring “proper” They spend some time refuting the broccoli question, which comes down to commerce and necessary and proper, but that is what is laughable about the argument (Robert A. Levy’s article on the health insurance mandate, which should be the basis of every opening statement in all future court hearings, expertly refutes this necessary and commerce argument from a constitutional law perspective.) For the entire Progressive era the plan has been to stretch and redefine “commerce” as broadly as possible. The commerce clause is the basis for almost all Progressive action, and it became a punch line: make a law, any law, call the activity to be regulated somehow tangentially attached to commerce, and there we go, new Federal power! Through this whole period the Supreme Court simply stood by, refusing to define commerce, so the Federal power continued unabated. It is not until the Court steps into its proper role as arbiter instead of rubber stamp that we see some truly ridiculous Federal encroachments rolled back. Everyone who has studied the Constitution is aware of the problems with the vague notion of these clauses and the problems they have caused throughout our history, but these articles gloss over that issue. They keep stating that there are enumerated powers that limit the power of the Federal government, but then they turn around and use the same old statist arguments about commerce, necessary and Supremacy. What are the actual limits then? We are somehow supposed to divine them, and when a court steps in and places an actual limit on Federal power, they are somehow misreading the constitution or one of those evil “strict constructionists” flying in the face of judicial precedent. Many of these articles bring in the specter of the Founders, how they were looking to create a strong national government with real power to compensate for the failings of the Articles of Confederation, and this is quite true. They also believed that they created a perfectly limited government, one that could never infringe on the liberties of the people and there was no need to have something as silly as a Bill of Rights. No one bought that at the time, and we should not be able to use that defense today. Specific provision were put in place to further limit the power of government (and I would say that includes the 10th) and there has been a 200+ year discussion about the proper role of, and the limits of power on, the Federal government.
Progressives have a vision of the state, one that has flourished for almost a century. They believe that they have guided the course of this country in the proper direction and we continually hear this reaffirmed in their talking points. “THIS” we are told, be it Social Security or Medicare or any other program they are defending, is the way a civilized society operates, and it is not to be questioned. That is the way everyone has been taught for decades, unquestioning allegiance to the plan, for it “protects” the people. The Constitution was never really a consideration in these discussions, it was usually an obstacle, and that is relatively obvious because we had to keep stretching and changing the definitions of things like “commerce”. Generations of people accepted these changes, and they watched the Federal government continually expand its power and influence. Does that by extension bind all future generations to forever march on never questioning their forefather's ideas and acceptance? If that was the case we would have never had the Progressive Era, because how could they have questioned 100 years of acceptance by their forefathers of a limited Federal government? While this is a pretty smart P.R. campaign on the part of Progressives, it really holds no water. There are people today who question the utility, necessity, and yes, even the constitutionality of many aspects of the Federal government, and in our system that is allowed. This is, for the most part, another attempt to stifle debate. Wrap the Constitution and the Founders in the warm, all encompassing happy glow of a Progressive, centrally planned state that will tend to all your needs, and the evil and uneducated corporate lackeys of the Tea-Party will have no leg to stand on. The Constitution is not perfect, and there will always be disagreement over the proper role of the Federal government in our lives. For Progressives the rallying cry has always centered on a “living constitution” that evolves to meet the circumstances of the times. Given this line of reasoning, seeing the huge bloat and massive deficits incurred by the Progressive state (and to be fair Republican mismanagement) a new generation may like to see the state evolve into something less intrusive and costly. Either way you want to term it, evolution or strict constructionism, the system has to change or we are all in store for an unpleasant future, and Progressive attempts to defend either proposition as their sole purview should be seen for what they are, hollow attempts to defend their creation against legitimate debate and criticism.

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