The Problem of Pork and Precedent, or Why We Need Amendment as a Third Front to Restore Constitutional Government

One of the distinctive features of the Tea Party is its focus on understanding the Constitution and pulling the federal leviathan back into its constitutional bounds. While conservatives certainly have always been cognizant of the Constitution, previous conservative resurgences were never as Constitution-conscious as the contemporary Tea Party. The question is, what do we do with that Constitution-consciousness? How do we go about restoring constitutional government to America?

Two fronts in this struggle have already been opened. The November 2010 election of many members of Congress who are constitutionally aware opened the possibility of acting legislatively to restore constitutional government. In addition, a new school of legal thought called originalism has been rising in the courts. Originalism holds that judges should be bound by the original meaning of the Constitution. Its essence was expressed by George Washington in his Farewell Address when he declared that the Constitution “’til changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.”

However, restoring constitutional government faces serious obstacles in both Congress and the courts. The current federal leviathan has been abuilding for almost a hundred years. In 1913, when Woodrow Wilson took office, the federal government consumed less than 2% of the national economy. That figure is now approaching 30%. As detailed in Timely Renewed, the federal government has been growing by multiples of the growth of population in terms of number of laws, regulations and workforce controlled by the federal government as well as money consumed. This amazing growth has not come out of nowhere. Every law, regulation, agency, subsidy, program and tax break is there because someone wants it there. Even the most ridiculous regulations have their supporters. For example, a federal regulation which requires that all highway signs have only initial capital letters (“This” instead of “THIS”) is adamantly supported by a senior citizens lobbying group which claims signs with all capital letters are too hard to read. A more serious example is ethanol subsidies. Even environmentalists have abandoned them, but they still persist because of the support of Illinois politicians beholden to agribusinesses and ethanol producers, such as, well, one Barack H. Obama.

Any special interest which benefits from a law, regulation, agency, subsidy, program or tax break is going to fight much harder to preserve its special benefit than the people at large will to eliminate it. In addition, the federal beast is now simply so enormous. No one really even knows where it all is.

Of course, technically, Congress could just undo it all. However, that is not how politics works. One man’s pork barrel special interest is another’s vital essential program. To carve back the beast through legislation requires fighting through every special interest which has spent a century building the federal leviathan. If this is done the political way, the way it was built, law by law, regulation by regulation, agency by agency, subsidy by subsidy, program by program, tax break by tax break, the sad fact is that it could take another hundred years to dismantle it.

Some look then to the courts. An example is the court challenges many states have launched to have Obamacare, or parts of it, declared unconstitutional. Conservatives seek to have judges appointed who respect the Constitution and will follow its original meaning. However, originalist judges face a major obstacle also. This is the legal doctrine called stare decisis. This is a conservative rule which says that courts should follow the rulings of earlier courts. In general this is a valuable legal doctrine. It promotes the rule of law by telling people that they can rely on existing court decisions in determining what the law is. This allows us to plan future activities with some level of confidence that a judge is not going to change the rules on us.

Unfortunately, this also means that the conservative doctrine of stare decisis can lock in rulings, especially by the Supreme Court, which disrespect the original meaning of the Constitution. The problem is that the Supreme Court has been following another legal doctrine since the New Deal. Sometimes referred to as the “living Constitution,” this doctrine holds that judges can vary from the original meaning of the Constitution if the judges feel that changing circumstances warrant it. In effect, this doctrine gives five Supreme Court justices the power to amend the Constitution, and Supreme Court rulings have been doing this for over 70 years.

The constitutional challenges to Obamacare illustrate the problem. Obamacare is based on the constitutional power of Congress to “regulate commerce … among the several States.” Originally this was meant to give Congress the power to override state laws that interfered with trade in goods from other states. This understanding held for 150 years. However, in the late 1930s and early 1940s, a Supreme Court filled with justices appointed by Franklin Roosevelt vastly expanded the federal government’s power under the interstate commerce clause to cover anything that affected commerce anywhere, anyhow. Every aspect of Obamacare would be inconceivable under the original meaning of the interstate commerce clause. However, because of these New Deal Supreme Court precedents, the states challenging Obamacare must instead make much more narrow arguments that certain aspects of Obamacare, particularly the individual mandate to buy health insurance, go even beyond the New Deal Supreme Court rulings. While we all hope that these challenges are successful, it is a vastly greater hurdle to challenge Obamacare under the New Deal interstate commerce clause precedents than under the original meaning of the interstate commerce clause. While a federal judge has ruled against Obamacare, two have ruled in favor of it under the New Deal Supreme Court precedents, and no one can be certain of the outcome of these cases in the Supreme Court.

Now you may ask, why don’t conservative Supreme Court justices just overturn the “living Constitution” precedents? The answer is stare decisis. Of course, Supreme Courts do overturn precedents form time to time. However, the longer precedents have been in place and the more decisions have been based on them, the more difficult it is for a conservative justice to overturn them. And the New Deal Supreme Court interstate commerce clause precedents have been in place for a very long time, and have been followed by many, many subsequent decisions. Even a staunch originalist like Justice Antonin Scalia has stated that “even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, one is reluctant to depart from precedent.”

So, if it is very difficult for Congress to overcome pork barrel special interests and very difficult for the Supreme Court to overcome deeply entrenched unconstitutional precedents, what are we to do? The answer comes from Washington’s Farewell Address. Just before the quote above about remaining faithful to the Constitution, Washington declared that the ‘basis of our political systems is the right of the people to make and alter their Constitutions of Government.” Later in the Address he says that if something needs to be changed in the Constitution “let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation.”

Amending the Constitution to restore its original meaning will sweep past both of the great obstacles to congressional and judicial restoration of constitutional government. It automatically and decisively overturns all unconstitutional Supreme Court precedents, no matter how hoary. This then permits the courts to return to their proper role of policing the Congress to be sure it adheres to the amended and restored Constitution, regardless of how powerful the special interest pleadings are. Constitutional amendments to restore the Constitution, such as those proposed in Timely Renewed, will give powerful tools to Tea Party legislators and originalist judges in the struggle to restore our Republic and Constitution.

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