Was the Constitution Meant to Limit Government Power?

While I don't agree with Robert Parry on what would be desirable, he makes some excellent historical points in "How Scalia Distorts the Framers." I've made my own contributions in "Was the Constitution Really Meant to Constrain the Government?,"  "The Constitution or Liberty?," and "That Mercantilist Commerce Clause."

Where’s the Win for Freedom?

Randy Barnett, Steve Chapman, and no doubt others are actually celebrating last week’s ruling on Obamacare. Why? Because Chief Justice John Roberts wrote in his opinion that the government can’t force us to buy health insurance under the Constitution’s Commerce Clause. Thanks goodness, Barnett, et al. say, that the Court did not allow a dangerous expansion of the commerce power that would permit the government to force us to buy things.

Does that mean the insurance mandate fell? Oh no. The Court found another (and long-established) ground for the mandate: the taxing power. Anything the government can do through the Commerce Clause it can do through taxation.

So is June 28 really to be a great libertarian holiday from now on? Not for me. I’ll be too busy actually promoting individual freedom.

Latest Scribblings

TGIF: “The Power to Tax Is THE Power” (regarding the Supreme Court and Obamacare)

Op-ed: “Are Americans Not Submissive Enough?”

TGIF: The Power to Tax is the Power

The authority for forcing us to buy health insurance is said to be the Commerce Clause and the taxing power. TGIF looks at these claims.

Read TGIF here.

"Among the Several States"

Just to report a bit further on my reading of William Crosskey: he presents overwhelming evidence that "among the several states," a key phrase in the Constitution's Commerce Clause, meant "among the people of the several states" and that an exclusively interstate meaning was almost certainly not intended. For example, he provides quotations from literate people at the time who referred to the duty of government to promote peace or tranquility or happiness "among the several states." The contexts of these quotations indicate that these could not have been meant to exclude intrastate peace or tranquility or happiness. In fact, in one example a delegate to the Constitutional Convention lamented that although Congress in the Confederation period "was intended to be a body to preserve peace among the states," it was not authorized to suppress Shays' Rebellion, an entirely intrastate affair.

Moreover, Crosskey provides countless quotations showing that the word "state" itself more often than not meant the people of a state. This was apparently the default meaning; other senses of the word seemed to require specification. Thus "among the several states" would have meant "among the people of the several states." This, again, is inconsistent with a strictly interstate reading of the Commerce Clause.

The upshot is that the Commerce Clause was not likely to have been intended as a limit on the power of Congress to regulate commerce. It's unfortunate, but the facts are the facts. Hiding from them does us no good.

Constitutional Question of the Day

Where in these words does it state that the national government may regulate only interstate commerce?

The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

I know it's been interpreted that way since about 1808 (not 1789), but why? Does the text actually support that interpretation and no other?