**Posted by Phineas
Bill’s back with another episode of Afterburner, this time taking a look at how progressives (including Supreme Court justices) have regularly twisted (and even tortured) the plain meaning of the Constitution to get what they want, rather than what the document allows. Bill focuses on two much-abused clauses in Article I, section 8, “General Welfare” and “Commerce,” to show that, interpreted in the progressive manner, as part of a “Living Constitution,” (1) these clauses stop being limits on government’s power and instead become grants of unlimited power.
My own view is that of originalism, that the document has to be read as the Convention and the ratifying states intended. Where the language is plain, as in…
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
…then the argument ends. In more ambiguous sections (often due to 18th century grammar and style), we can use our reason (2) and examine primary sources of the time, such as the Federalist and Anti-Federalist Papers, the records of the Constitutional Convention, and the contemporaneous state constitutions to figure out what was intended.
And where the powers delegated to the federal government under the Constitution are inadequate to meet a truly national or multi-state issue, there’s this little thing called Article V that provides a means to rewrite the rules in a manner best-suited to creating consensus — unlike diktats from imperialist judges divining the current meaning of the living constitution from its penumbras and emanations.
Any other way is just stealing power.
(1) Just to be fair to the other side, Strauss’ recent book, The Living Constitution, has been receiving good reviews. It never hurts to know the other guys’ arguments.
(2) Contra Ezra Klein, it’s not hard.
(Crossposted at Public Secrets)