Joe --
I am writing from an airport, with my money running out, so please excuse me for being (too) brief. Here are a few, somewhat rhetorical questions for you.
1) What do you think of the general concept that by the US constitution, the federal government is one of limited and enumerated powers?
2) As you know, many libertarians and conservatives, and even some liberals, believe that the concept of enumerating the federal government's powers turns to nonsense if the welfare clause is interpreted to mean that Congress can impose pretty much any tax it wants, if only it thinks it serves the general welfare. It also turns to nonsense if the commerce clause is interpreted to mean that congress can regulate anything that has any bearing on the economy at all. How fair do you think this point is?
3) I am now assuming that you concede that there is some fairness to point 2), though less than I think there is. Given that assumption, where do you draw the line between the concept of enumerating and limiting the powers of the federal government, and the broadness of interpreting the welfare clause and the commerce clause? What are the constitutional principles based on which you draw that line?
4) For illustration, I would find it helpful if you could name a government project with the following properties: a) you personally like it as a policy, b) in centralistic democracies such as France, it is commonly done by the national government, and c) in America, it is limited by the constitution, according to an interpretation of the commerce clause you find reasonable as a matter of constitutional law.
Thanks, gotta go.
Thomas wrote:1) What do you think of the general concept that by the US constitution, the federal government is one of limited and enumerated powers?
I accept that.
Thomas wrote:2) As you know, many libertarians and conservatives, and even some liberals, believe that the concept of enumerating the federal government's powers turns to nonsense if the welfare clause is interpreted to mean that Congress can impose pretty much any tax it wants, if only it thinks it serves the general welfare. It also turns to nonsense if the commerce clause is interpreted to mean that congress can regulate anything that has any bearing on the economy at all. How fair do you think this point is?
Reasonably fair.
Thomas wrote:3) I am now assuming that you concede that there is some fairness to point 2), though less than I think there is. Given that assumption, where do you draw the line between the concept of enumerating and limiting the powers of the federal government, and the broadness of interpreting the welfare clause and the commerce clause? What are the constitutional principles based on which you draw that line?
That's a nearly impossible question to answer, since the rulings on the general welfare clause and the commerce clause are not identical. As a general matter, however, I would say that lines must be drawn according to the plain meaning of the constitution, the intent of the framers, and the relevant judicial precedent.
Thomas wrote:4) For illustration, I would find it helpful if you could name a government project with the following properties: a) you personally like it as a policy, b) in centralistic democracies such as France, it is commonly done by the national government, and c) in America, it is limited by the constitution, according to an interpretation of the commerce clause you find reasonable as a matter of constitutional law.
Well, condition (a) presents a rather formidable obstacle, since I like so few governmental policies. I would say (without committing myself to liking the policy) that the supreme court's decision in
U.S. v. Lopez, which held that congress did not have the power to ban possession of firearms in a school zone under the commerce clause, was correctly decided.
