Scarier than Redistribution
Keep in mind, this is at a time he was a senior lecturing law professor. One would think he's have read some Constitutional history to understand the roots of the document. Evidently that wasn't required reading when he went to Columbia.
And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
I might suggest that he go back read the Federalist Papers, where John Jay and Alexander Hamilton, James Madison; some of those Founding Father's he found so lacking; discuss why the government built the way it was, and specifically answer questions about the Constitution.
One of the overriding themes of the formation of our government was a restriction of powers, at the local, state, and especially federal level.
It wasn't a "mistake" on the part of the Founders that they wrote a document of negative liberties (for the government). It was by design. If the Constitution didn't give the government power to do something, then that power didn't exist in the government. If the population wanted something changed, there is a provision for amendments the document.
Contrary to Senator Obama's belief, the Constitution does tell the Government; in Article 1, Section 8; exactly what powers it possesses. In Section 9 it tells them exact things it can't do.
If he'd have read the 10th Amendment at some point in his schooling he'd understand that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, if the Constitution doesn't say the Fed's have a right to do something, they don't.
Taxation, trade, and defense, and basic rights of the citizenry were what the document was written to outline. Along with the Bill of Rights, it lays down the basic framework of our government.
The reason that there is no section on what the government is required to give you is that the government wasn't required to do anything but those four items. The rest is up to the citizens. (again, go back to the 10th Amendment)
Obama's views are one of the major problems with the "living document" theory of Constitutional Law. The basic premise that the Founding Father's didn't know what life would be like 200+ years later, and therefore we should interpret the Constitution to mean what we think it should today.
In actuality they wrote, as Antonin Scalia has said, a "dead document". They've given a provision for change should the times change, the amendment. They intended for the Constitution to be a solid framework, not a flexible mold. If the framework needs changing, then you get Congress and the people to agree to that change.
Think of your Constitution as a bridge. If you, the casual user (or President, or Congress person, or Judge) decide you don't like the looks of the bridge, or think it's unsafe. Do you just make repairs yourself, right there? No, you call in a lot of folks structural and design engineers, real construction workers, etc.
When the Constitution needs repair, or revision, the orginal framers never envisioned Congress, the Courts, or the President deciding on those repairs themselves. Yet that's what they've done for the better part of our history, instead of making the changes the way it was intended.
Take for instance, "The Commerce Clause" of the Constitution, from Article 1, Section 8:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Taken with the (decidedly vague) Necessary and Proper Clause at the end of that section:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Congress has decided that pretty much anything can be considered to have an affect on "interstate commerce" and therefore falls under their jurisdiction. In most cases, the courts have upheld them.
The cases where the courts have tossed legislation based on that clause are; unfortunately; few and far between. In fact from the New Deal until today only a handful of Congress's power grabs under that clause have been tossed out by the courts.
I bring that clause up specifically because under an Obama Presidency, and probably with 2 justices being replaced in his first term, we'll see Congress passing all kinds of laws that are in the guise of protecting interstate commerce.
For instance, how hard would it be for them to issue redistibutive remedies, by saying that because some groups have less money than others to spend it stifles commerce? How tough would it be to say that because health care isn't uniform among the states, and a healthy workforce is necessary for the conduct of interstate commerce, they should be allowed to design a national health care system?
Keep that in mind next Tuesday.Read The Full Post!