Tuesday, December 07, 2010

Constitutional Conservatism

An excellent column:

But the notion that the Constitution imposed substantive, rather than merely procedural, limitations on that government was for a long time fairly uncontroversial.

As recently as the early 20th century, the consensus was that it would require a constitutional amendment to give the federal government the power to ban the sale, manufacture, and transportation of alcoholic beverages. In 1933, it took a second constitutional amendment to repeal this power. Today, if Washington were inclined to ban Demon Rum it would be justified under the pretext of regulating interstate commerce.

Consider the constitutional amendments that ended slavery. Slavery had a much bigger impact on interstate commerce than most things the federal government today claims the power to regulate under the interstate commerce clause. Yet even people who in the context of those times held fairly expansive views of the role of government did not think the interstate commerce clause gave the federal government the power to end the massive human rights abuse of slavery.

The slavery example proves that the Constitution itself was not perfect. That's why the Framers included an amendment process. But it also shows that even our political class once took seriously the idea that their actions must be authorized or justified by constitutional text to be legitimate. (New York Times op-ed writer Lincoln) Caplan treats this belief as a form of madness.

Well worth your time to read the whole thing.

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