Earmarks and Obamacare — Count on the Constitution, not Congress or the courts

There has been considerable brouhaha over whether the Republican-controlled House of Representatives in the 112th Congress will really reduce runaway federal spending. One day the leadership designates a chairman of the Appropriations Committee with a major earmark portfolio of his own and the next day there are fears that even Tea Party stalwarts might get wobbly on bridges to nowhere. This has raised protests from both libertarians and conservatives (see here and here on the Appropriations chairmanship, here and here on bridges to nowhere). The specter of the last Republican-controlled Congresses, which descended into free-spending mania, looms large.

The legislative battle to control spending is necessary and worthy, and we must continue to encourage the new Republican majority to be true to the promises they made in the last election to control spending.

However, may I suggest a more fundamental analysis. Struggling to get Congress to be truly fiscally conservative is a retail solution when the problem is wholesale. Similarly, the constitutional challenges to Obamacare will not necessarily overturn the entire law. For example, even Judge Henry Hudson’s generally commendable decision held that eliminating the individual mandate does not invalidate the rest of the law. By nitpicking at separate individual usurpations in Congress or the courts we are fighting the Washington game by Washington’s rules. These Washington rules are based on over 70 years of abuse of constitutional language by progressive control of the Supreme Court and other branches of the federal government. As long as these modern misinterpretations of the Constitution stand, neither legislative action or court challenges will be enough. Until we address the underlying distortions of the Constitution which have allowed the federal government to expand far beyond its original constitutional powers, the statists will always be able to advance another program, another legal cause to replace whatever we succeed in repealing or overturning.

We will only bring the federal leviathan under control when we start fighting the battle on our own terms. Our battle strategy must be to stand on the Constitution. We can permanently cut off the federal leviathan at the source by restoring the original constitutional structure which limited the federal government’s ability to expand to such ridiculous size and power.

We can restore this very limited allocation of authority to the national government by amending the Constitution to restate the original meaning of the clauses which have been most distorted by the Supreme Court. A complete program of such amendments is laid out in Timely Renewed. The most critical may be the restoration of the interstate commerce clause set out in Chapter 5 and of Section 1 of the 14th amendment set out in Chapter 9. Then we should add an enforcement procedure to the 10th amendment whereby states (at federal expense) can get a declaratory judgment that a congressional law violates the Constitution (as amended and restored to its original meanings) directly from the Supreme Court as soon as Congress passes a law. With a procedure like this we would not have to wait years for travesties like Obamacare to work their way through the court system before they are finally declared unconstitutional by the Supreme Court. This procedure is also laid out in Chapter 5 of Timely Renewed.

However, amending the Constitution to limit federal power will be difficult when the federal Congress holds a monopoly on initiating constitutional amendments. Therefore, the first step is to put through an amendment to the amendment process itself which will eliminate the cumbersome and unnecessary convention now required by Article V for the States to propose amendments. Instead the States will be empowered to directly initiate and approve amendment proposals. (See the discussion here, the amendment text here, and Chapter 5 of Timely Renewed.) This will break the current de facto federal congressional and judicial monopoly on interpreting the Constitution.

Such an amendment to the amendment process will empower grassroots patriots on the state level to restore the Constitution by bypassing and outflanking Washington. Politicians will be politicians. We must lock in this moment of constitutionalist resurgence regardless of the vagaries of political parties or federal judges. Only by restoring and enforcing the basic constitutional limits on the federal leviathan can we permanently constrain future federal mischief, thus protecting the nation even if the coming 112th Congress unhappily goes the way of the Republicans of the 1990s and early 2000s.

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