Friday, February 8, 2013

State resistance to rogue post-constitutional federal government

An excellent manifesto from Protein Wisdom:

You’ve read me make this argument several times now, but let me repeat it yet again:  the way to reestablish first principles is, quite simply, by reestablishing fidelity to the Constitution; and the way to reestablish fidelity to the Constitution is both to follow it as it was written and to acknowledge its clear intentions, both on the macro and micro levels:  the Constitution provides the framework for levels of government, providing the federal government with certain clearly defined enumerated powers, with the rest being left to the states and the we the people, all while creating a system of checks and balances and messy adversarial battles with an implied judicial review — that latter of which can only function as intended should the judiciary adopt as its interpretive methodology any cast of originalism/intentionalism that seeks, in those instances where the Constitution itself is not abundantly clear, to determine what was in fact meant by those who wrote and then passed legislation, weighing it against the corporate intent, that is, the common understanding of what the Constitution proposed by those who agreed to ratify it (which, for instance, would de-problematize the 2nd Amendment), in order to determine a law’s Constitutionality.
To this end, I’ve suggested that states — particularly those states with strong conservative governors and majority GOP state legislatures or assemblies — begin resisting federal and bureaucratic laws and mandates that fall outside the clear purview of the central government as laid out in the Constitution itself.   That is, resist those laws and mandates that the federal government has no facial authority to issue or impose — regardless of what some robed philosopher kings bent on creating new law sui generisattempt to foist upon the owners of the government, we the people, either out of some commitment to “social justice,” some cleverapplication of unrelated precedent, or some re-writing of the law in order to maintain a veneer of political impartiality (and yes, CJ Roberts, I’m looking at your pompous ass).
The Supremacy Clause, the Commerce Clause, the General Welfare Clause — all of these have been gradually expanded over time by poor or politically expedient (and hermeneutically incoherent) court decisions  to give the federal government power and reach that a plain reading of the Constitution prohibits. Which suggests that the bridge between an outsized federal government with nearly all-encompassing legislative and regulatory powers and the original intent of the Constitution itself, has been paved with bad law upheld by bad courts, including those “conservative” courts that like to defer to prior court decisions rather than basing their rulings on the original text and intent of the Constitution itself.  Else, how to explain the clear and obvious distance we’ve traveled legally from the system of government so carefully considered and laid out by the founders and framers for the express purpose of preventing government tyranny and promoting individual sovereignty and liberty — along with the promotion of state and local power over distant federal power — to manage the affairs of a diverse national populace?
Read the rest here.

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