Tuesday, March 18, 2008

Constitutional Law

What would it mean to go back to the Constitution as the sole source of FEDERAL authority?

It would mean the Federal Government would have to give up a lot of power and the state and local governments would have to pick up a lot of slack.

The Constitution clearly outlines the duties of the Federal Government and, according to the 10th Amendment, anything not specifically enumerated in the Constitution is an area where the States are sovereign.

The following Departments are almost completely unconstitutional in what they do.
The Department of Education.
The Department of Health and Human Services.

This does not mean that they don't do things that are important or needed, but it means they are doing things that the Constitution does not allow. The Constitution, by its exact wording, requires the states to take responsibility for education, as well as the welfare of the individual citizens. Some say that the Preamble to the Constitution says that the Federal Government is to promote the general welfare, and it does use those words, but the preamble gives the intent of the Constitution and the rest of the Constitution is how to do it, and the "how" that the Constitution uses is to hold the states responsible for it as it is not enumerated as a Federal responsibility. Remember that the Federal Government may do only what the Constitution specifically says it can or must do and the states can do anything not specifically forbidden to them.

Now a total return to the Constitution would be disastrous to some people, as it would mean an end to Social Security, Unemployment Compensation, and a couple of other things. (And a Federal universal medical program is also not allowed by the Constitution.) We can't just end these, but we also need to stick to the Constitution. Perhaps we would be wise to amend the Constitution to allow, but severely limit, some of these programs as just ending them would be inhumane.

Some say that the Federal health inspectors assure the quality of, oh let's say our meat. The Feds may inspect meat within the limits of the Constitution, provided that meat is going to cross state lines to be sold or consumed. If it is being raised, slaughtered, sold, and consumed in the same state then it is that state's responsibility to make sure it is safe.

One thing that would have to change is that the Feds would have to tolerate the states passing laws that they don't approve of. Here's the hard thing. The Constitution does not forbid stupid laws! It forbids unconstitutional laws. I agree completely with what Robert Bork said about Griswold vs Connecticut. The law that was struck down was allowed under the Constitution but, as Mr. Bork said, it was a very stupid law! The Supreme Court should have said "The law as it stands is permitted by the Constitution, but it is a foolish, intrusive and ill advised law. We encourage the good people of Connecticut, and other states, to reconsider it and to take it off the books." Instead they played with loopholes until they came up with a Rube Goldberg path of logic that made it unconstitutional.

Surprisingly there are areas of controversy where the Feds do have Constitutional authority. The Federal Highway system is allowed as the Feds are required to build and maintain "Post Roads", the Space Program is allowed as it is the responsibility of the Feds to develop the frontier that is outside the territory of individual states.

The thing is, once we start ignoring this or that part of the Constitution, the whole thing is danger, including the Bill of Rights. Those who would ignore the rights and responsibilities of the individual states will not hesitate to ignore the rights and responsibilities of the individual citizens.


Blogger Patrick Joubert Conlon said...

We can dream. The Feds have no business in anything except defense and interstate projects (roads, dams etc.) The states can handle the rest.

1:04 AM  
Blogger Bob said...

Thanks for reminding us.

11:03 PM  
Blogger jgf said...

Well said.

11:28 PM  
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