Thursday, February 10, 2011

Utah State Legislature Fails Constitutional Interpretation

I got a really nice laugh this morning on the way to work.  KUER, the local NPR radio station, ran a story about the Utah legislature defining rules for how it sues the federal government.  One of the sections of this legislation is a list of powers given to the federal government.  Rep. Ivory explained the need for this list by stating:
I thought it was fascinating. There oughta be a list out there that just lists the enumerated powers. There's just not. There's just not, and we talk so often about the government being one of enumerated powers, but there's no list anywhere.
There oughta be a list?  Uh, I believe that "list" is the United States Constitution itself.  In fact, within the Constitution there is an actual section known as the Enumerated Powers.  Is Rep. Ivory too lazy to read the Constitution and therefore needs a nice, simplistic list for him to understand?  Or is it possible that Rep. Ivory doesn't like how the Constitution is written and would like to re-write it in a way a bit more pleasing to himself?  Is there something wrong with the Constitution that he believes needs fixing or clarifying?

The bill also requires the state to "judge federal action against that list, using the meaning of the provision at the time it was drafted - as far back as 1789."  So the touchstone for all Constitutional interpretation by the Utah state legislature is now not the Constitution itself, but a hackneyed, superficial, and biased list of enumerated powers as interpreted by Rep. Ivory?  Sounds like a real logical step forward.

And I've laid out before why it is inane to try to interpret the Constitution based on "original intent" -- because there was no single original intent and because it doesn't make sense to try to overlay 18th century understanding on an infinitely more complex 21st century world and because the Constitution was intentionally written broadly to adapt to changing circumstances -- but now the Utah legislature has made state law.

We now have further evidence that the Tea Party extremists who profess such love and fealty to the Constitution neither understand it nor respect it.


Steve M. said...

The bill also requires the state to "judge federal action against that list, using the meaning of the provision at the time it was drafted - as far back as 1789."

Apparently the Utah Legislature also fails to appreciate that, whether it likes it or not, it is bound by 200 years of constitutional interpretation by the Supreme Court. Even Scalia, the Great Originalist, concedes that this imposes a limitation on his own opinions. As I once heard him say at a law school event, "I'm not going to tell the people of North Carolina that their state government can infringe their right to free speech. I'm an originalist, but I'm not a nut."

Sadly, the Utah Legislature is comprised of nuts.

Jacob S. said...

Steve, its been a while. I was sad to see Dissenting in Part ended.

The Utah legislature sees itself above the Constitution and therefore not limited by it. That is why, in that linked story, they imagine that they are enacting a "soft repeal" of the 17th Amendment, as if they had some authority or even unique insight into issue, which they does not.

So not only does the legislature apparently not like the way the Constitution is written, it doesn't like the couple hundred years of Supreme Court interpretation, which is also based on the Constitution, as you mention. It's very, very fascinating to watch this play out.

Josh said...

"Sadly, the Utah Legislature is comprised of nuts."

As opposed to the federal government?

If I can make myself chuckle, that's well worth my time!