An opinion piece in the September 23rd edition of the Economist by the author “Lexington” issues a dire warning against the perils of worshipping the Constitution. In it he mocks the tea party movement and other conservatives who claim that following the Constitution contains the key answers for our current political problems. We are “infantile” for believing that “simple fidelity to a document written in the 18th century” can appropriately settle the “complex political arguments of today.”
Lexington poses an example. “Should gays marry? No answer there.” In context, he is saying that the Constitution does not answer the questions surrounding homosexual marriage.
I believe that my conservative credentials are more than sufficient to fit within the group being parodied by the Economist -- and yet, I fully agree with his statement that the Constitution does not answer the questions concerning same-sex marriage. It is the federal district court judge in Los Angeles that struck down the California ban on same sex marriage, and which claims to have found an answer to this issue in the Constitution. The judge in that case, however, can neither point us to text nor history to back up this claim. The opinion was an invention from his personal philosophy and not a valid constitutional interpretation.
Since the Constitution contains no protection for a right of homosexual marriage, then the issue should be settled by the democratic process. It was. It was called Proposition 8 and it was approved by the vast majority of California voters. Simple fidelity to the Constitution contains an answer to this issue. The answer is: the voters get to decide the policy they want.
Lexington poses another intractable problem in our government and mocks those who believe that the Constitution can resolve it. It is the problem of “the mighty administrative branch” and the “imperial executive.”
The executive branch is “mighty” to be sure. Agencies like the EPA and scores of others have the power to enact regulations that have the force and effect of law. The collective weight of these regulations -- together with tax laws and unionization rules -- have driven American manufacturing jobs overseas at a dizzying pace.
What does the Constitution say about this? The answer is in Article I, Section 1. “All legislative powers herein granted shall be vested in a Congress of the United States.” The only group that is supposed to make law at the federal level is Congress. Allowing bureaucracies to make rules that directly control the actions of private people or regulate the use of private property are an improper assertion of legislative power by the executive branch. Even if Congress purports to give away its power, it cannot do so.
When Congress makes laws there are political consequences holding it accountable. When agencies make laws, holding them responsible is next to impossible.
What, then, is the answer to “the mighty administrative branch”? Follow the Constitution. Strip 100% of the power of such agencies to make law. Require them to submit their proposals to Congress and make them take a vote. If the agencies have good ideas, then let Congress endorse them and take the responsibility that goes with their votes.
Finally, Lexington scoffs at the notion that the Constitution gives us an answer to the difficulties posed by the modern welfare state. It is absolutely true that the Constitution does not, for instance, answer the question of whether or not socialized medicine is a wise policy. But the Constitution does answer a question that is absolutely critical to this debate: What agency of government has the authority to create a system of socialized medicine?
The Constitution’s answer is clear. Only the states possess residual power on domestic issues. The federal government only has enumerated powers. The Commerce Clause gave Congress the ability to regulate interstate trade. Trade was distinguished from agriculture, manufacturing, mining, and even banking. States cannot regulate interstate commerce, yet the vast majority of banking laws are state laws. How is this possible? In constitutional terms, banking is not commerce and is a proper subject of state regulation. (And the Uniform Commercial Code adopted by all 50 state legislatures is a marvelous example of how states work together to make banking a seamless transaction throughout the country.)
If one state wants to enact socialized medicine it can do so. If other states want freedom in medical choices, they can pass their laws according to their policy choices. And then the American public can evaluate which system works best. If they like socialism they can re-elect their state legislature and governor. If experience teaches that freedom works better they can throw the rascals out and adopt policies favoring a more freedom-loving state.
The Constitution’s answer to Obamacare is simply this: the entire subject matter is beyond the jurisdiction of the federal government.
"Lexington" treats the Constitution as if it is nothing more than a statement of political philosophy. Yet the core role of the Constitution does not seek to prescribe rules of political philosophy for determining the wisdom of public policy; rather, it sets forth rules of law that establish the limits of the power of government. Obedience to those limits would lighten the load on the taxpayer and give freedom a fighting chance.
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Michael P. Farris served as founding president of Patrick Henry College (2000-2006) and is now Chancellor. In addition to teaching Constitutional Law and coaching the Moot Court team, he organizes a mentorship program for PHC students called Tyndale's Ploughmen. He serves as Chairman of the Home School Legal Defense Association. Read full bio.