Leftists Don't Understand the Constitution

There's some first-rate Constitutional scholarship being done over at Alas. First, Ampersand says that Ted Kennedy couldn't have been expelled from the Senate (over the Chappaquiddick scandal) because it would deprive the people of Massachusetts of the right to elect whomever they want to the Senate. In fact, the Constitution is fairly clear on this issue:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Adam Powell is cited as precedent for the unconstitutionality of expulsion, but Adam Powell, as I understand it, won his case on a technicality having something to do with a distinction between exclusion and expulsion (see the decision for details).

Next, Myca claims that the current expansive interpretation of the interstate commerce clause (i.e., the Federal government can essentially do anything it wants) is a perfectly legitimate interpretation which does not do violence to its original meaning.

As I have pointed out before, James Madison stated in no uncertain terms that the general welfare clause did not grant Congress carte blanche authority to do anything not explicitly forbidden. The same logic applies to the interstate commerce clause—if the framers had wanted to give Congress that kind of general power, they would not have gone to the trouble of enumerating the specific powers granted to Congress.

In fact, the Eighteenth Amendment is proof that this was understood until 90 years ago (as I understand it, the change came about as a result of Roosevelt's shameful court-packing scheme). Under the current (mis)interpretation of the Constitution, Congress is believed to have the power to ban recreational drugs. But it was understood in 1917 that Congress has no powers not explicitly granted to it in Article I, Section 8 of the Constitution, which is why the Eighteenth Amendment was needed to enact Prohibition. Likewise the Thirteenth Amendment, which was needed to give Congress the power to ban slavery.

Update: To be fair, most conservatives don't understand the Constitution, either.

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Moreover, regarding the

Moreover, regarding the Commerce Clause, see Randy Barnett's extensive work arguing that the original meaning of "regulate" meant only "to make regular," not the more liberal understanding given it today. But my favorite argument is one I heard Richard Epstein make: if the clause's interstate portion was as broad a grant as is currently interpreted:

The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That is to say, if "to regulate commerce... among the several states" means do whatever you want if it affects commerce, then "to regulate commerce with foreign nations" must mean the US government also has carte blanche to make any sort of laws it likes governing foreign nations. Congress can ban cheese production in Moldavia, introduce a new minimum wage in Kazakhstan, and nationalize chunks of Borneo.

I know of no originalist defenses of the current interpretation. Those favoring broad Congressional power are on stronger ground when they move back a step and criticize originalism itself, as many of them do, e.g. using Ackerman's theory of constitutional interpretation (I can't think of any other non-originalist theory of constitutional interpretation that isn't batty. Epstein's perhaps.)

Brandon's summary of Constitutional history is broadly accurate, though it is of course a simplification.

Point well taken.

Good point about expelling members -- I stand corrected. What would be unconstitutional, I suppose, isn't expelling a member, but excluding that member once he's re-elected?


I'm actually not sure. The Constitution doesn't explicitly say whether an expulsion is permanent or the member can be re-elected. I imagine that reading the Powell case would give some insight into how the Court interprets this power, but I just read enough to determine that the Court did indeed acknowledge the House's authority to expel members but had determined that it had not followed the correct procedure for doing so in the case of Powell.

Actually, Brandon, my

Actually, Brandon, my comment wasn't even related to the legitimacy of the interpretation, but the difference between 'an interpretation I disagree with' and 'changing the text of the Constitution'.

Anyone who thinks we are

Anyone who thinks we are governed by the Constitution is kidding himself. We have a president who has stated he will ignore laws he doesn't like. At least since the Lincoln Revolution we been governed by secret signing statements and secret executive orders. We are not permitted to know what our laws are.

True false

Anyone who thinks we are governed by the Constitution is kidding himself.

Essentially, yes. It's still useful, it still constrains government to some extent. But it's a shadow of its former self.

We have a president who has stated he will ignore laws he doesn't like.

Well, that seeming explanation of the shredding of the Constitution seems, by what it omits (the two centuries before Bush) to be pushing the idea that the rot all started with Bush and this in turn implies that it's possible to salvage the situation by getting Bush out of the White House and voting in ... Obama, I suppose.

And that is simply not true. The Constitution has been getting shredded since the start. That it's all Bush's fault is a lie which has been getting pushed by Democrats who have been trying to regain the White House from the day Bush was "selected not elected", as they used to say. To them, Bush's Presidency has amounted to a shredding of the Constitution since long before his term actually began. Bush's real crime was not the Iraq war or the Guantanamo torture or whatnot, it was winning the close election and disappointing the Democrats. Everything Bush has done has, in their eyes, been a crime because at the very least it required the authority of the Presidency, and Bush was never legitimately President.

If a Democrat were in the White House doing all the things Bush does and more, the outrage would be coming from the right and would, consequently, be much weaker than the ridicule of that outrage - as the left owns the media - as well as, now, the loudest and most obnoxious websites.

The government still exists, which means that Bush has not, in fact, been able blatantly to flout the law. What he has been able to do is to exploit ambiguities which were already there before he arrived - same, really, as the Presidents before him. By the very same token (i.e., that they are in fact ambiguities), had a Democrat done the precise same thing as Bush, by far the loudest voices would be laughter drowning out any suggestion that he had done wrong.

At least since the Lincoln Revolution we been governed by secret signing statements and secret executive orders.

Very true. It's good that you've got you head on straight about this. It was most certainly unfair of me to pick your comment to rant about those darn liberals.

Bush definately eroded our rights

I understand where you are coming from here. I don't think you can pin the acts of some sickos at say Abu Girab on Bush. However, I do think that waterboarding is torture, and his adminstration has admitted to doing that, and has pushed in that direction. That and the idea that certain humans can be classified in such a way that they can just be "disappeared" permanently on government say so, Habeas corpus be damned.

Those and several other things done by him have put the US in the position of loosing a lot of moral high ground. Yes, I know, I know waterboarding isn't fingernail pulling and thats what "everyone else" is doing. None the less it muddies the water. Complain about China or Russia torturing, unlawful imprisonment and the like and they can turn around and say "You do it too".

I don't think it bought us much either. Nothing in fact.

Not denying that

I'm not saying that Bush didn't erode our rights. I'm saying that Clinton also eroded our rights, as did Reagan, as did Nixon, as did Johnson, as did Kennedy. Probably Carter and papa Bush too. McCain eroded our rights. Obama participated in the erosion, though being so new there's not much that can be laid at his feet yet.

I Thought...

...you were working up to a plug for Tom Wood's latest book.

Worst Example

In my opinion the worst example of this is the drug laws that allow the government to charge property with crimes using the fiction that it is some kind of person or actor.

Second worst is the way the commerce clause was stretched to the point where farmers could be told not to feed corn they had grown themselves to their own hogs.

Perhaps the worst single act in violation of the constitution being the confiscation of private gold by FDR, and nullification of gold clauses in contracts.

At least that's what pops into my head. I probably forgot something far worse given all the trampling of the constitution going on.

Ah, and there's Reagan's

Ah, and there's Reagan's Immigration Reform and Control Act using... the commerce clause again to punish employer who employ illegal immigrants.

There's also Shelley Vs Kraemer, and the convoluted idea that the 14th amendment somehow prevent enforcement of discriminatory contracts.

In fact, Congress doesn't really need to make federal laws. They can do the same they're doing for the 21 drinking age:

1) Increase federal taxes
2) Offer a tax rebate to states implementing such and such policy

The majority don't care

The old people always vote. The young people seldom vote.

The old people control the money and are doing just fine.

The Rs think they will do better if they keep control of the presidency but know they will do OK under the Ds. The Ds think they will do better if they win but know they will do OK under the Rs. The devil we know is preferred to the devil we don't know.

The blue/white collar working people are happy with sports, RVs, cheap booze and dope.

In other words, as long as we can own guns, choose our jobs and places of residence, go to church or not, write stuff on the web, vote for our tax collectors . . . we think we are free. Our owners have learned much since the Russian Revolution.