by Doug Bandow
The incoming Republican House majority intends to require that all legislation cite specific constitutional authority. Tea party activists are calling themselves constitutional conservatives. A federal judge ruled Obamacare to be unconstitutional.
Many in Washington are worried. The idea that the Constitution is relevant to the operation of the federal government is a frightening concept to those constantly seeking to expand Leviathan.
The document creates a national government with only limited and enumerated powers.
The post-Civil War amendments expanded national power to protect individual liberty in the states, not Washington's authority to infringe the liberty of the same individuals.
However, judicial "interpretation" changed over the years. Although the Founders provided a method to amend the nation's governing document, activists preferred to take a judicial short-cut. They turned the Supreme Court into a sort of continuing constitutional convention, with new amendments routinely enacted with just five votes.
Yet if the people's intentions are not controlling, then what is the purpose of the Constitution?
The document should simply authorize the executive and legislative branches to do whatever they feel like, subject to judicial review, based on whatever the judges feel like. Why bother with the pretense that constitutional interpretation is occurring?
Not every constitutional question has a clear answer, of course, but that doesn't mean honest interpretation allows any answer.
The nation's founding document envisioned a national government of enumerated powers.
Lincoln Caplan of the Legal Times recently sneered at the "nostalgia for an inadequate version of the nation's past." Yet the problem of government abusing power and violating liberty is eternal.
Has time passed the Founders' handiwork by?
Read the rest at CATO.
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