Thinking About Constitutional Issues

An opinion piece in the Washington Post today provides some good fodder for thinking on Constitutional issues, especially the all important 9th and 10th amendments and the power of the Federal court system. Although, overall, I have some problems with the editorial, I definitely enjoyed the opening paragraph:

Conservatives want courts to be stingy in creating and expanding constitutional rights — except when they don’t. Liberals want courts to be creative and expansive in interpreting the Constitution — except when they don’t.

To say that this is a broad generalization, and a significant misunderstanding of “rights”, would be fair. To say that it is a good characterization of social conservatives and liberals would also be fair. They have completely lost sight of what the Constitution is. The document is not a listing of what rights individuals have. Nor is it a document to empower the government to take whatever action a majority deems appropriate. The document actually does just two things.

  1. Establish the framework of the national government and enumerate the specific powers the government has.
  2. Provide specifically what powers the government does not have, and bound those powers as the limit of what the government may do

It is this framework that is so sorely misunderstood today. We see it every day when the Congress, aided and abetted by the President, the Courts, the pundits and the majority, establish laws and regulations dealing with schools, train crossings, welfare, growing marijuana, regulating gun ownership and much more.

What we see here is the belief that government is here to do things for us, rather than for us to do things for ourselves, with a government that ensures that no one is violating someone else’s rights. The writer, as might be expected on the Post, misses that fact herself. Although, to her credit, she sees the inherent problem in the position she takes:

Yet, if conservatives don’t actually have a zero-tolerance policy toward judicial activism, neither can liberals claim particular constitutional consistency. Those who believe, as Reinhardt does (and as I do), that the Constitution should be interpreted expansively enough to embrace protection for abortion and gay rights have a hard time explaining why that approach doesn’t encompass a broad view of parental rights.

And that, of course, is the problem. If you have a right to privacy, isn’t that right to privacy expansive to your entire life? Or is it only so for abortion, birth control and what sort of sex you have?

And, there is a deeper problem, of course. One that the left will never admit. That problem is simply this. None of this would be an issue for the Federal government if the left had not pushed the powers of the Federal government into every nook and cranny of our lives during the New Deal and Great Society, especially after the switch in time that saved nine gave FDR essentially a free hand. The problem is not that the constitution is interpreted incorrectly. The problem is that we have tossed the constitution out the window, kept a veneer, a fig leaf, and proceeded to create a government that is exactly what our Founding Fathers rebelled against: Run by Rule of Man, not Rule of Law, expansive, intrusive, and anti-liberty.

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