Saturday, September 12, 2009

The Great Debate, Part 3: What Now?

In the last two posts we’ve analyzed the ongoing Constitutional debate of: “Is the federal government to be a small government with a few enumerated powers or an expansive government with a few enumerated restrictions?” We’ve looked at how those who want an expansive federal government have used imaginative interpretations of the Constitution’s general welfare and commerce clauses as the basis of their expansion.

But what about those of us in the first camp, who believe the Constitution outlines a small, restrained federal government? Although things may look bleak (what with massive new government bailouts, “stimulus,” entitlements and corporate takeovers from both major political parties), there is reason to believe that the government expansion pendulum may be reaching its apogee.

Firstly, there is the cost of unfettered government. The federal government is currently $11.8 trillion in debt. Social Security and Medicare spending are set to rise as baby-boomers age and retire. Both of the big-box parties have shown no willingness to curb spending. To put it mildly, this is unsustainable. Something WILL change, one way or another, and it probably won’t be pretty when it does.

Secondly, as I noted in the previous post, many people are getting fed up. They are increasingly protesting the federal governments policies, be they seemingly never-ending wars, taxes or government controls. They are quite literally marching in the streets. And although it’s not usually the topic of polite political conversation, with some 70 to 80 million of them bearing arms, the American people are not a force to be trifled with.

Voters gave Republicans control of Congress in 1994, then the Democrats in 2006, showing a “throw the bums out” attitude both times. (Hopefully this continues and the current batch of bums will get their walking papers in 2010.)

Thirdly, the Supreme Court has lately begun to recognize at least some limits upon federal power (as also noted in the last post).

Lastly, the states themselves seem to be awakening against federal usurpation. With or without the aid of the Supreme Court, they may well be able to push the federal government back within its Constitutional bounds.

The “Real ID Act,” a Bush-era security measure mandating federal standards on state-issued IDs, never got off the ground because too many states simply refused to comply with it. Short of sending in troops, what were the feds to do?

More recently many states have introduced “state sovereignty resolutions” declaring their rights under the Constitution’s Tenth Amendment. They have passed in at least two states so far. These are, however, mostly symbolic declarations with no enforcement mechanisms.

Besides ad hoc noncompliance and symbolic gestures, the states have the old legal theories of nullification and interposition at their disposal. These ideas were most famously articulated in the Kentucky and Virginia Resolutions of 1798, state protests against the federal “Alien and Sedition Acts.” Later, northern states used nullification to disregard federal fugitive slave laws that they found odious.

The theory holds that the states, as the creators of the Constitution, are the ultimate judges of a law’s constitutionality, not the Supreme Court. Laws introduced in several states may soon test these theories or at least get the Supreme Court to reexamine it’s interpretation of the commerce clause.

Montana passed the Firearms Freedom Act, which states that firearms manufactured, sold and used only in Montana are exempt from federal firearms laws, since they don’t involve interstate commerce. Tennessee also passed similar legislation and it has been introduced in at least five other states. Gun rights groups are already preparing for the court battles.

Red and blue states alike seem to have federal intrusions they don’t like. California is poised to pass a resolution demanding the federal government stop meddling in the state’s medical marijuana laws. Arizona, Georgia and several other states have proposed plans to opt out of any national health care plan.

If you add up all these elements it’s easy to see that, despite the appearance otherwise, the era of big government may finally be set to ebb. But, no doubt, this great debate over the role of government in our lives will rage on indefinitely.

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