Thursday, July 19, 2012
The Constitutional Reboot
The law is very unsatisfying to individuals who deal in logical certainty. The unyielding pressure to bring in a win for your side leads advocates to all manner of argument that seeks to redefine language or ignore generally accepted solutions. Cases where the rules are changed, however, are the sensational exception. For the most part, Judges are first public servants who are happy to apply logic and reason to solve problems. So I hope this piece may be a little more satisfying to those who apply logic to solve problems.
The framers of our Constitution, I have argued, foremost understood prosperity and how a central authority that acts for economic good protects established interests while stifling innovation. To protect a prosperity that made their lives appreciably better than Europeans, the framers sharply limited the power of a central authority to regulate on matters of economics.
Poor performance of the economy, it should be no surprise, provides the greatest opportunity to rethink our constitutional system. I have talked about the American fascination with fascism as it appeared to propel Germany to prosperity in 1933. I have also talked about parallels between Great Depression policies and Soviet confiscation of the Ukranian family garden. The Supreme Court acquiescence on January 6, 1936 to central planning, proscribed by the Constitution, which cannot now be thrown off, even in small corners, by some of our most powerful elected officials.
A liberty deflation now threatens the prosperity that the framers of the Constitution understood. In an economic deflation, the value of assets decrease, which degrades institutions that permit individuals to access capital. It grinds slowly, as people rationally defer decisions to engage in commercial activity. The deflation feeds itself, as institutional failure becomes culturally acceptable. The deflation of liberty engenders the same effects. We accept the grinding demise of prosperity, while believing the advance of the central government leviathan is inevitable.
I give you one word that may turn the great liberty deflation – and.
The U.S. v Butler court set aside ordinary rules of statutory interpretation, when it unhitched Article I, Section 8 taxing power from the 17 permissible reasons for federal taxation. For centuries, as James Madison well understood as he penned The Federalist 41, courts applied general statutory language limited by specific language in the same enactment, using the canon expressio unius est exclusio alterius (the express mention of one thing excludes all others).
An “and” inserted into Article I, Section 8 returns tax and spend powers to the way the drafters understood that courts construe statutes:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States, AND;
With this change, the great constitutional virus scan may begin.
As it is now, a court called to examine an enactment need only decide whether Congress used the powers of taxation and appropriation to extend “only to matters of national, as distinguished from local, welfare.” With the “and,” the dutiful public servants in the judiciary would methodically examine whether a challenged tax promotes the general welfare AND fits within the 17 permissible taxation purposes. On a case by case basis, the courts would unwind the now great and growing central regulatory leviathan.
One simple word may reverse the great liberty deflationary spiral that began January 6, 1936.