Invisible living and breathing clauses

This report supplies as stark an example as I have seen that we have a president with absolutely zero respect for the Constitution.

President Obama announced today that he was going to take a new step in the expansion of executive authority by recess appointing a head to the new Consumer Financial Protection Bureau despite the fact that the Senate isn’t actually in recess. This has, of course, spawned an angry backlash. However, the man that the President is appointing is relatively unknown.

His name is Richard Cordray and he has some interesting views on the limits of congressional power.

What view is that? Very simple:

…any legislation which has even “incidental effects on the economy” is a “valid exercise of congressional authority” because of the commerce clause.

“Any,” of course, means any:

Honestly, how many people in this country would agree that the Constitution views any legislation that has any effect on the economy, no matter how slight or round about, as a valid exercise of congressional authority? After all, what legislation wouldn’t fall under that standard? What human action, or in Obamacare’s case, inaction wouldn’t be under congress’s authority to impose its will upon?

Well, if I were really feeling cynical, I might ask how many people in this country have read the Constitution or have the slightest idea what it says to say nothing of what it means.

But this is a perfect (although not new) illustration that liberals (and Democrats generally) do not see any constitutional limitations whatsoever on government power.

This is not to say that Republicans are perfect. But they at least make a stab at grappling with what the Constitution allows the federal government to do, and what it leaves to the states. For that they are called racists and a whole bunch of other names.

Sometimes, though, Republicans can be so inconsistent in their views of federalism as to be incoherent.  I think Rick Santorum’s inconsistencies, while nowhere near as bad as the Democrats wholesale view of constitutional meaninglessness, need some explaining. For example, he believes in the absolute right of states to ban contraception:

…one of the reasons Santorum lost in 2006 was because they say he’s more conservative than mainstream America. One issue was Santorum’s opposition to the Supreme Court’s 1965 ruling that invalidated a Connecticut law banning contraception. Santorum said he still feels that a state should be able to make such laws.

“The state has a right to do that, I have never questioned that the state has a right to do that. It is not a constitutional right, the state has the right to pass whatever statues they have.  That is the thing I have said about the activism of the Supreme Court, they are creating rights, and they should be left up to the people to decide,” he said.

OK, so if we assume states have the right to pass whatever statutes they want, then why shouldn’t they be allowed to legalize marijuana? Or gay marriage? Santorum has famously distanced himself from Rick Perry in that regard, and his thinking goes beyond even federalism, or constitutionalism. According to Santorum, no state has the right to enact laws which Santorum believes are “moral wrongs.”

During his presidential campaign, Perry has repositioned himself a bit, emphasizing that he favors a constitutional amendment defining marriage as being between a man and a woman at the federal level. However, he hasn’t backed away from his position that until such an amendment passes, the issue should be left to the states. His spokesman reaffirmed this to the Washington Post’s Jennifer Rubin this week. He also reiterated that Perry believes states should be able to decide whether to legalize medical marijuana.

A spokesman for Santorum shot back that, “Senator Santorum is certainly an advocate for states’ rights, but he believes as Abraham Lincoln — that states do not have the right to legalize moral wrongs.”

Santorum may be driven by an earnest concern over the erosion of values, but it’s chilling to analogize Lincoln’s opposition to slavery in new territories with contemporary attempts to legislate morality at the federal level. In Lincoln’s time, human beings were being held in brutal captivity. Now, there’s a debate over the societal effects of individual behavior.

Beyond this unfortunate framing of the issue, the legislation of morality infringes upon personal liberty and sets arbitrary standards. It’s hard to make a consistent moral argument for why people are free to consume the destructive drug of alcohol, but not marijuana.

Does Santorum think that no state has the right to legalize marijuana because it’s wrong? What if you think that not guaranteeing free health care is morally wrong? A moral wrongness standard may not be as infinitely flexible as the Democrats’ “impact on the economy” standard, but it seems pretty open-ended to me.

But who gets to decide? The problem is, a lot of people (including myself) would see imprisoning people for marijuana or gay sex as a profound moral wrong. And if allowing marijuana and gay sex is a moral wrong, then what about mercury, divorce, global warming, lead, CO2, alcohol, unequal income distribution, and social injustice?

If a “moral wrongness” standard is to override the Constitution, then whose view of moral wrongness is to prevail? The majority view? I think it’s better to stick with constitutional separation of powers, and I think Santorum would do well to bear in mind that the slavery was finally abolished by constitutional amendment. Just as Prohibition was both established and abolished by amendments.

I’m not saying alcohol is the moral equivalent of slavery, mind you. But as a constitutional issue, should the fact that Bible countenances both at various places matter? And while Jesus made and consumed alcohol, he condemned divorce, seems to have frowned upon high-income people, and, a few fringe arguments aside, was silent about marijuana, whether medical or otherwise.

Whether his views should matter is not the same as whether they should override the Constitution (overridden as it already is by the liberal interpretation of the Commerce Clause).