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Enabling Leviathan

There are always a lot of ideas floating around out there, as to how to rein in an out of control government. You’ll hear solutions, like going back to Senators being appointed by state legislatures, rather than being elected, which I’m not sure would really fix much. But I think the enablement of the modern state really boils down to only a few things.

One of the big issues is the Courts moving to very loosely interpret the non-delegation doctrine. Non-delegation essentially means that Congress can’t assign its legislative responsibility to other bodies. For instance, in a post I did this weekend, I mentioned how Obama could turn a lot of gun owners into criminals overnight. Under a strict interpretation of non-delegation, this wouldn’t be possible. The realm in which administrative law could operate would be very narrow, and laws which only ambiguously described powers of an agency wouldn’t be unconstitutional. I think many liberty-minded people tend to overlook the importance of the non-delegation doctrine in beating back the leviathan state.

The second area is more familiar, in that the courts have granted Congress a very broad power under the Necessary and Proper clause. For instance, in Raich, the medical marijuana case, the court ruled that it was within Congress’ power to prohibit marijuana in the stream of interstate commerce, and that it was also necessary and proper, in order to preserve Congress’ regulation of the national market, to reach into strictly intrastate activity.  It’s always seemed to me the courts pay a lot of attention to the “Necessary” components of “Necessary and Proper,” and not a whole lot of attention to the latter. I think to re-invigorate  liberty, it might be necessary, and proper, I might add, for the courts to say that Congressional actions may be necessary, but it surely isn’t proper. This could be interesting as the Court examines Obamacare.

I think if you could reform both these doctrines, it would go quite a long ways to getting the federal government out of every sphere of public, and sometimes private life. There are certainly many other constitutional insults one could mention, but if I had to pick two, these would be my choices. I think that could be important, if sympathetic individuals decide that amending the Constitution is the only way to achieve this. I’m starting to believe that folks who love liberty shouldn’t be afraid to use the amendment process. The progressives certainly were not afraid of it, and achieved much through the process.

12 Responses to “Enabling Leviathan”

  1. mobo says:

    The Antifederalist is FULL of warnings about the necessary and proper clause, and the Federalist reassures us that these warnings were nothing more than hysterics. Of course we know now that Hamilton, Madison, and Jay were less than honest about thier intentions.

  2. mobo says:

    And Madison would later “flip-flop”, which is the reason we have a Madison quotation for just about every occasion.

  3. Lucky Forward says:

    This post is on the money. If we rein in the Byzantine myriad of government agencies and their repressive rules, we will be scaling back the EPA, IRS, TSA, HHS and any other agency you can think of that is infringing on our liberties. But Congress finds it so much easier to pass the buck. A Constitutional amendment might be needed.

    And the Commerce Clause is another provision that needs to be interpreted narrowly!

  4. Alpheus says:

    I concur with both points! For one of them, I’ve even devised a slogun: “No Regulation Without Representation!”

    If we could get lawmaking back into the hands of Congress, and only in the hands of Congress, then we’ll have made a lot of progress…and, hopefully, our Regulation count will go down significantly, too (assuming we vote out rubber-stamping scum, and replace them with people who actually read the bill).

    Come to think of it, we should also pass a law that states: no bill can be voted on by the House, or the floor of the Senate, until after being submitted for consideration, enough time has been granted for the slowest reader of the House or Senate to have read through the entire bill, amendments and all, with a maximum cap of six hours a day, five days a week, for reading.

    (Oh, and if some district, somewhere, elects someone who’s proven illiterate, I would consider that a feature, and not a bug! :-)

  5. Wes says:

    You could do all that. Or you could just elect Ron Paul.

    • mike says:

      You could do all that. Or you could just elect Ron Paul.

      Everyone knows that the only way to defeat a liberal is with another liberal. The theory is that they’ll cancel each other out and then it’s only a choice between the (D) and (R) – and of COURSE people will vote for the liberal with an (R) after his name – it’s just common sense.

      The GOP is a joke, and I’m seeing the same mental gymnastics I saw in 2008 when Republicans were trying to convince themselves that McCain was really a great candidate. I’m calling it for Obama (D). Sometimes people get the politicians they deserve.

    • Sebastian says:

      It should be pretty obvious by now that Ron Paul is not electable.

      • mike says:

        It should be pretty obvious by now that Mitt Romney isn’t either. “Hey at least he’s not Obama” can only do so much.

      • Wes says:

        Yep, funny how the one guy against the Patriot Act and NDAA indefinite detention is the “unelectable” one.

        “I’ve decided to vote for the pro-Patriot Act, pro-NDAA, pro-big government, gun-grabber guy. …Now I just need to figure out which party.”

  6. dustydog says:

    I think the jury box is the best hope for America. The Tea Party is showing the power that regular Americans have against the Ivy League-rs and cronies.

    Ancient Greece had a system like Social Security – men of a certain age (I think it was 53) were paid to sit on juries. If they came every day, they could earn a comfortable salary, but they had the option not to come whenever the wanted. Trials were regularly heard by 500 or more men, with decisions by majority vote.

    12 jurors, carefully selected by a DA, judge, and public defender looking out for the interests of the DA over his client – of course regular people don’t get justice. But 500 retirees, and you are likely to get a few eloquent leaders who will side with rational thought and justice.

    • Alpheus says:

      Sadly, with the way Prosecuting Attorneys use plea bargaining to threaten accused people, the jury box isn’t as reliable as it used to be. All our freedoms have been eroded, silently, right under our noses, and it happened so gradually that it would have been difficult for any of us to see it coming!

  7. A Critic says:

    For instance, in Raich, the medical marijuana case, the court ruled that it was within Congress’ power to prohibit marijuana in the stream of interstate commerce, and that it was also necessary and proper, in order to preserve Congress’ regulation of the national market, to reach into strictly intrastate activity.

    I overruled that decision as SCOTUS was lying. Everyone should overrule that decision.

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