Here's a longer one: is that "Necessary and Proper" clause only there as decoration?
Okay, let's agree to assume the premise: that Congress has not regulated inactivity before.
The problem is that without making assumptions, we may say with certainty that the Supreme Court has never drawn a legal distinction between economic activity and inactivity before... even when given the opportunities to do so.
Here's Antonin Scalia on inactivity and regulation:
"It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction."
And here's Scalia on interstate commerce vis a vis Congressional power:
"As this Court has acknowledged since at least United States v. Coombs (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. …And the category of "activities that substantially affect interstate commerce" is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."
No, the Founders "threw in" the clause, as you even-handedly put it, because they were nearly not as concerned with embalming What The Founding Fathers Would Say as with safeguarding the future growth of America. Ironic, huh?
So they thought they were "safeguarding the future growth of America" by giving the government unlimited power? I must have missed that section of the Federalist Papers.
It's not "unlimited power," no matter what Frank Luntz tells us to think. Congresses that do what is found to be unnecessary and improper typically get overturned by the Supreme Court. And politicians often lose elections for less than that.
The Constitution was written to be a malleable document that would extend to unforeseeable events and developments. This is Government 101 stuff.
Incidentally, the English Bill of Rights was in many ways an explicit model for our own, and Federalist No. 84 argued *against* our adding a Bill of Rights at all, so those were terrible rhetorical flourishes. But if you look hard enough, you can probably find the proof that Obamacare is illegal in the pages of "Beowulf."
I like the comment I saw somewhere (Instapundit?) on the expansion of the Commerce Clause: "If the Founding Fathers believed there are no limited powers, why did they bother to write the Constitution?"
Modern liberal lawyers learn to wordsmith the Constitution to the point that it becomes meaningless - like the folks above. (Or like a crazy cult leader who can take a couple of Bible verse out of context and warp it into something most Christians don't recognize)
Regular people can read it and understand it is a model for very small and limited government.
11 comments:
Here's the counterargument: So?
Here's a longer one: is that "Necessary and Proper" clause only there as decoration?
Okay, let's agree to assume the premise: that Congress has not regulated inactivity before.
The problem is that without making assumptions, we may say with certainty that the Supreme Court has never drawn a legal distinction between economic activity and inactivity before... even when given the opportunities to do so.
Here's Antonin Scalia on inactivity and regulation:
"It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction."
And here's Scalia on interstate commerce vis a vis Congressional power:
"As this Court has acknowledged since at least United States v. Coombs (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.
…And the category of "activities that substantially affect interstate commerce" is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."
You don't got Scalia, you don't got the votes.
So the Founders threw in "Necessary and Proper" in order to establish a totalitarian bureaucratic dictatorship – the rest was just window dressing?
No, the Founders "threw in" the clause, as you even-handedly put it, because they were nearly not as concerned with embalming What The Founding Fathers Would Say as with safeguarding the future growth of America. Ironic, huh?
nearly not = not nearly
So they thought they were "safeguarding the future growth of America" by giving the government unlimited power? I must have missed that section of the Federalist Papers.
Did they rebel against the King because the Magna Carta and English Bill of Rights of 1689 gave him too little power?
It's not "unlimited power," no matter what Frank Luntz tells us to think. Congresses that do what is found to be unnecessary and improper typically get overturned by the Supreme Court. And politicians often lose elections for less than that.
The Constitution was written to be a malleable document that would extend to unforeseeable events and developments. This is Government 101 stuff.
Incidentally, the English Bill of Rights was in many ways an explicit model for our own, and Federalist No. 84 argued *against* our adding a Bill of Rights at all, so those were terrible rhetorical flourishes. But if you look hard enough, you can probably find the proof that Obamacare is illegal in the pages of "Beowulf."
I like the comment I saw somewhere (Instapundit?) on the expansion of the Commerce Clause: "If the Founding Fathers believed there are no limited powers, why did they bother to write the Constitution?"
Eric - Exactly!
Modern liberal lawyers learn to wordsmith the Constitution to the point that it becomes meaningless - like the folks above. (Or like a crazy cult leader who can take a couple of Bible verse out of context and warp it into something most Christians don't recognize)
Regular people can read it and understand it is a model for very small and limited government.
Bram- exactly! Modern lawyers like John Marshall. And liberal lawyers like Antonin Scalia.
It's astonishing how often the Founding Fathers are in absolute agreement with whoever's writing about what they would agree with.
And it isn't just me noticing that. Thomas Jefferson did, too.
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