Wednesday, January 19, 2011

Constitutional Over-Correction: Extreme States' Rights

Utah's very own baby-faced tea-party senator, and self-styled Constitutional scholar, Mike Lee, recently held forth that, of all things, child labor laws are unconstitutional.  I guess I'm more sad than anything.  Sad because we have completely stopped thinking through issues and ideas carefully.  Rhetoric rules.

The best way I can describe what is going on is with a car analogy, which I understand is worn and cliche but I am nothing if not worn and cliche.  So, you are driving along on a road trip and you are eating a Wendy's spicy chicken sandwich and you look down for a second to rearrange the wrapping for your next bite and when you look up you are drifting into oncoming traffic.  The natural reaction is to jerk the wheel back.  But this is how rollovers happen, by over-correction.  The proper response is to course-correct more smoothly.

I will be the first to admit that there are some troubling things in America.  I can fully agree that the national debt is an embarrassment and has to be dealt with.  I can fully agree that the federal government needs to be tightened up and run more efficiently.  We have written several times that we need to strengthen our democracy with things like term limits and reformed campaign finance laws.  But the tea party is over-correcting.

Rand Paul said that he thought the Civil Rights Act was unconstitutional.  Mike Lee now says that child labor laws are unconstitutional.  There is a whole movement to repeal the 17th Amendment which mandates the direct election of senators.  Sharron Angle and Sarah Palin and Michele Bachmann appear to encourage violent reaction to a perceived tyrannous government.  The list goes on, and it demonstrates how some are trying to capitalize on the tea party fervor to strip the Constitution down past its logical limits.  Over-correction.  We delved into some Constitutional issues before, notably here and here.  Let's take a look now at the extreme states' rights issues raised by Senators Lee and Paul, and the tenthers generally.

Article I Section 8 of the Constitution says:  "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States."  It also gives Congress authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."

The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Commerce Clause is the biggie.  Almost all economic regulation by Congress is predicated on the Commerce Clause.  The health care reform bill is a classic example.  Congress has the authority to regulate the entire health insurance industry because it engages in interstate commerce.  That is, people buy health insurance and move around from state to state and health insurance can be transported across state lines and so it is interstate commerce of the kind the Constitution gives Congress the authority to regulate.

Conservatives think this is overreaching and they point to the Tenth Amendment and argue that unless the Constitution gives explicit authority to the federal government the individual states alone have authority in that area.  So, since the Constitution doesn't mention health care, it must be an area that the federal government has to stay out of and only the states can regulate.  It's hard to square that with the Commerce Clause, but there you have it.

The Constitutional originalists, who have shaky historical footing to stand on, in my opinion, would like to go back to the era of the Founding Fathers where the federal government exerted almost no control over commerce, and state sovereignty was much more pronounced.  Again, over-correction.  As I've pointed out before, we live in a drastically different world than the one of 1787.  At the time there was very little interstate commerce.  It was an agrarian nation where the necessities of life were grown, made, and consumed locally.  But as the nation began to industrialize and commerce started to expand beyond localities and states, the Commerce Clause suddenly began to take on immense meaning.

Now, virtually nothing we consume is not a product of interstate commerce, and it is very common, probably the norm, for a person to move to a different state at least once during their lives.  These are phenomena that didn't exist at the time of Framers.  States' rights, then, in a world of ultimate mobility, have much less importance.  The need for the federal government to exert control over commerce and ensure uniformity, an equal footing for all states, and protections for consumers who are far removed from the production of the things they purchase, not to mention the ability of large multi-state and multi-national corporations to abuse their power, is more important now than in 1787.

The tenthers like Lee and Paul who want the federal government to relinquish most of its authority over interstate commerce to the states simply don't understand, or willfully misrepresent, the complexities of the modern world.  Look, I agree that the federal government has done some overreaching and over-regulating, and I'm happy that the Pres. Obama is tackling that issue.  I can understand the desire to have government de-centralized and closer to the people.  We can certainly do some rearranging in those areas.

But we are still the United States of America.  One big, complicated nation.  We need certain minimum protections and regulations that protect all citizens equally and tackle problems that are much, much bigger than individual states.  The Constitution gives the government power to do that, no matter what bizarre things Senator Lee has to say about child labor laws.

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