An Immodest Proposal (updated)

Editors Note: The following is excerpted from my prior posting. This was done at the suggestion of kind compatriots who thought that post too long, and were concerned that some casual readers might not ever get to the “red meat” bit. If you’d care to look at some of the background information that prompted this “suggestion”, see: Obama’s not the problem. Romney’s not the solution.

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Consider the following post at the Claremont Institute by James W. Ceaser on Restoring the Constitution:

If undisciplined government is the problem, in what way can the Constitution help? Taking this question to the oracle at Delphi (link added), the answer might be: in one sense not very much, but in another sense quite a lot. Distinguishing the two is the key to solving the riddle.

The first sense—legalistic constitutionalism—understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense—political constitutionalism—understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.

However, whether they are Republicans or Democrats, there is little possibility that Congress and the Executive will suddenly shackle themselves with constitutional restraint. Congress has invariably sought to expand the reach and power of the federal government through one piece of legislation after another. When challenged, the courts have for the most part upheld said legislation. Then the executive branch goes on to expand federal powers even more through the creation and implementation of regulations. When regulation and promulgation are challenged, the courts, again for the most part, grant their imprimatur. The system has been crafted over a long period and is designed to create, promote and preserve the power of the federal government. The players have little or no desire to restrain themselves. For the most part they are enablers of one another. And partisan bickering is often no more than diversion. Much the same could be said for the “bipartisanship” ruse.

This system, as it stands, is unchallengeable by private citizens or groups. Go along or go to jail … even if you didn’t really break any laws. Few have the time, money and stamina to mount a serious challenge against the federal government in court. And even if you do win, the victory may prove Pyrrhic. Just ask Lord Black. And it doesn’t mean that down the road the government won’t go after some other poor bastard for essentially the same thing. What we have here is a tyranny of, by and for a legal system that to a great extent serves no useful purpose other than to perpetuate itself. That’s why with 5 percent of the world’s population we have 50 percent of the world’s attorneys.

If political constitutionalism is to be anything more than a catch phrase, it will have to be because a substantial majority of the states, with the support and on the behalf of state residents, don the Constitutional defender mantle, and as a group challenge the federal government, i.e., Civil War II. It won’t be pretty, but it need not be bloody. That this is the direction whither we’re moving is indicated by such state actions as Arizona’s illegal alien legislation, Florida’s refusal to stop purging its voter rolls of fraudulent registrants, and several states’ proclamation of their intent to not fully implement Obamacare. That’s probably why Attorney General Eric Holder has been so vigorously challenging these assaults on federal prerogative.

The states would do well to get organized and coordinated. First order of business would be for the state parties, especially the Republicans, to become financially detached from the national party. Without control of their own funds, the state parties cannot act independently of the national. Reincorporating under a different name, for example “Texas Independent Republicans” or a similar moniker may also be necessary. Then, along with the Tea Party, and whoever else is of like mind, get state legislators elected who will vote for the convening of Constitutional Convention II. Without some such bold action I have no faith whatsoever that there will ever be any substantive improvements in the functioning of our government. The Constitution may very well need updating whether or not it’s “living”, but certainly not by the courts or executive orders or the bureaucratic fiats that have, to a large extent, been the case so far. After over 200 years of floating about in briny political and legal seas, the Constitution seems bit barnacle encrusted. Perhaps it’s time to pull it out of the water for a good scraping.

Who knows, we may even end up with a bit of originalism back in our public debate.


Update: If you still think that Congress any regard at all left for the separation of powers doctrine, may I suggest that you consider the following post at the National Review‘s “Bench Memos” blog:

The Consumer Financial Protection Bureau and Separation of Powers
By Ammon Simon
July 16, 2012 11:07 A.M.


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