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.


Tom said...

As an evil Hedge Fund manager (and an ex evil Wall Street Banker) talking to an evil trial lawyer, I hope you don't take my criticisms of the law personally. (In truth I know we've discussed this before, but now everyone here knows it too.) We hopefully all know that a demonized profession does not make a man into a demon.

A friend (one you've met actually) once asked me how you get ahead on Wall Street and I told him "Be a useful tool to rich and powerful men." Real talent is a rare commodity in Wall Street so people are ALWAYS looking for it. The problem with that of course is that you may find yourself being put to some ill purpose, or at least one which contradicts your personal morality (although I personally have found that's rarely the case.)

Being an attorney is a similar thing. You are a tool that others choose to swing. Lawyer's don't sue people plaintiff's do - unless of course the plaintiffs are also lawyers. You can be used to right wrongs or to worsen them. That's why in the end all of this is the fault of our culture and our general lack of virtue. Lawyers are really just the easiest scapegoat.

Anyway I plan to continue to complain about the law and occasionally about lawyers, but that doesn't mean I'll be rude to strangers who happen to be lawyers. That's too childish a take for a conservative, in my opinion, and good manners should trump all others in dealing with actual people.

ikaika said...

imagine that - a conjunction is the bridge out of serfdom

Tom said...

One more way that schoolhouse rock has saved us all.

frithguild said...

I never take criticisms of the legal profession personally. I recognize I am a war horse.

The result of any particular case may be repugnant to me personally. But I have an unbending duty to my client, if I agree to take on a particular case - a big if when it comes to issues that are repugnant to me.

But once a lawyer is in - there is no getting out. At times your greatest friend is the law and the code of legal ethics. So I feel little shame in giving a client my best effort, even where I may have a philosophical disagreement with any particular argument.

I just need to trust in the self correcting nature of the entire system. Without criticism of the law, self correction goes away.

frithguild said...

Conjunction junction, what's your function?

Hooking up words and phrases and clauses!

Chess said...

Frith you make it so even I can sort of understand. But the AND could take a major back seat to SCOTUS replacemnt and balance within it.
3 new judges in next 4 years...Now that you cant always count on Roberts Ill say we have a 4.5/4.5 court. BHO would replace 2 libs and ?Kennedy... If if if Mitt gets the chance its a huge move for conservatives.. Get rid of 2 staunch libs

As I said before Ill wait for Axelrod to inject ROE if his boy is trailing in October.

frithguild said...

Not so Chess. A court can take the construction of a statute only so far to suit an ideological bent. Make it clear that the Article I, Section 8 analysis requires 2 steps instead of one, then the court must do its duty. It will take a constitutional amendment, sadly.

In the meantime, I am with you 100% on the importance in appointing originalists.

Scalia's discussion of Roe with Piers Morgan will become huge this election, I guarantee.

chess said...

Jefferson said he was fearful there were too many articles in the Constiution..
Constitutional amendment?..Never happen anymore..
Im still waiting for Lex Luther to carve off California and let it sink. A guy can dream cant he?