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. Â 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 Â 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.