"The fox knows many things, but the hedgehog knows one big thing."


Glenn Reynolds:

Barack Obama:
"Impossible to transcend."

Albert A. Gore, Jr.:
"An incontinent brute."

Rev. Jeremiah Wright:
"God damn the Gentleman Farmer."

Friends of GF's Sons:
"Is that really your dad?"

Kickball Girl:
"Keeping 'em alive until 7:45."

Hired Hand:
"I think . . . we forgot the pheasant."

I'm an
Alcoholic Yeti
in the
TTLB Ecosystem

Thursday, January 20, 2011

The Government They Deserve

Alexis de Toqueville almost certainly never wrote, "In a democracy, people get the government they deserve." Joseph-Marie, Comte de Maistre, probably did. It's a rather gloomy and cynical notion, and de Toqueville was neither. But gloomy though it may be, it seems inescapably true. Voters who cast their ballots for silly, ignorant candidates will get . . . silly Government.

So we ought not be surprised when a silly Member of Congress -- elected by silly, thoughtless voters -- opines on the Constitutionality of Obamacare and says silly things. Whether the Federal Government has the power to require every citizen to purchase health insurance is an interesting question. Around here, we tend to think it has no such power; to justify it as an exercise of the taxing power is cynical; to justify it as a regulation of interstate commerce is tricky; to justify it at all requires arguments that seem to us to have no natural or rational limit: if Congress can compel you to enter into this particular activity, then it's not at all clear that there exists any aspect of life that remains outside the power of Congress to regulate or compel.

But one might think that a Member of Congress, called upon to explain his thinking on this topic, could be expected to do better than this:

It is, of course, not the Constitution, but the Declaration of Independence that uses the phrase "pursuit of happiness." And it might be noted that it does so in the context of individuals being permitted to pursue happiness free of Government interference, rather than Government doing what it pleases in order to make folks happy. As for the Fourteenth Amendment, it seems odd to invoke "equal protection" to mean that the Government has the power to do anything it pleases so long as it tends to make everyone equal, and to make that "equality" a right.

Are we to understand that bald men have a right to Government issued toupees? Or, instead, that all men may be required to shave their heads in order to bring about equality? If you think that's silly (and it is) we can't wait to see your reaction to the Regulations promulgated pursuant to the Federal Anti-Obesity Act of 2015.

In a democracy, people get the government they deserve.

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Comments on "The Government They Deserve"


Anonymous Anonymous said ... (9:10 PM) : 

A man with a degree in religion is asked to make a technical constitutional law argument and provides a disjointed answer. Hmmm. On the other hand, Justice Kennedy may not be overwhelmed by the doctrinal pedigree of the argument that an act of Congress should be judicially overruled because the law’s justifications are “cynical” and “tricky”.

It does seem that those supporting the judicial invalidation of this law will have to justify some “cynical” and “tricky” positions of their own. For example: How can the same ideology repeatedly call for the privatization of Social Security while maintaining that it is unconstitutional for the Federal Government to compel a private citizen to participate in a private market? How is it that the Necessary and Proper Clause grants Congress the authority to compel private citizens to engage in military activity, while denying Congress the authority to compel private citizens to engage in a specific economic activity? What textual basis exists for such a distinction? Or how is it that the same ideology which has repeatedly called for a return to textualist constitutional interpretation can advocate for the invention of a novel constitutional rule in order to invalidate a democratically enacted statute with substantial popular support?


Blogger Gentleman Farmer said ... (11:54 AM) : 

I'd not expect someone with a degree in theology to be conversant with Constitutional law. But I WOULD expect a legislator to have educated himself about it. If you ask an auto mechanic to perform your appendectomy, it doesn't make him an idiot for not knowing how to do it; it makes you an idiot for having selected him.

The federal government can compel military service because the Constitution explicitly empowers the maintenance of an army and navy.

I certainly agree with you that the Constitutional basis for Social Security is questionable.

As for invalidating the will of the people: that's the purpose of a Constitution. It sets out exactly what the Government can do, and what it can't do, irrespective of the popular support for this or that action.

If the people think it's a good idea for the Government to buy each citizen a unicorn, then they should amend the Constitution to include the right to a unicorn.


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