Althouse: In a pro-Kagan editorial, the NYT argues that we should support the most expansive interpretation of the Commerce Clause...

July 20, 2010

In a pro-Kagan editorial, the NYT argues that we should support the most expansive interpretation of the Commerce Clause...

... because it empowers Congress to give us "some of the best things that government has done for the better part of a century, and some of the best things that lie ahead."

That's the argument. The Constitution should mean what it needs to mean so that we can get the things that we want from government — all those fine things that government deigns to do for us. The NYT tells us that some conservatives are "infuriated" because Kagan "refused to take the Republican bait and agree to suggest limits on that clause’s meaning." They're angry because they don't like the good things government does. Those bad old obstructionists. They're the Party of No.

The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.

59 comments:

Anonymous said...: I ask the NYT to substitute the words "other citizens" for "Government" and see if their proposal still sounds good.

I like good stuff too, but I don't expect other nameless taxpayers to pay for it.; 7/20/10, 9:53 AM
Adam said...: The sheer laziness of the argument, as well as its ethereal disassociation from logic or history, leads me to ask: Is Michelle Goldberg now on the editorial board of the Times?; 7/20/10, 9:54 AM
Anonymous said...: NYT readers aren't supposed to disagree with that. It should be a universally shared, uncritically accepted belief. Any other position is "extreme" and "out of the mainstream".; 7/20/10, 9:54 AM
Pastafarian said...: I'm surprised. I've read Althouse for quite a while now, and I assumed that you were OK with the commerce clause justification for otherwise unconstitutional (or extra-constitutional) legislation.

Reading comprehension and law are not strong points for me. But still...You vote Democrat, for crying out loud. I'm really starting to wonder why you've ever voted for a Democrat. You don't hold many views that jive with them.; 7/20/10, 9:56 AM
Steve M. Galbraith said...: The idea that constitutional law stands apart from political preferences is nowhere to be found.

Constitutional law, journalistic ethics, so many obstacles in the way of social justice. Men are not angels except when they use the commerce clause. Then they become saints.

It is interesting that the civil libertarians so concerned (mostly correctly) about the potential government abuse of national security powers seem to have no concern - none really - about the potential abuse of the regulatory powers of that same government.

Apparently, the men and women who will misuse national security powers won't misuse economic ones.; 7/20/10, 9:57 AM
Unknown said...: The idea that the Constitution actually means what it says when it tries to limit the role of government is something dreamed up by all those racist, sexist Dead White Males.

Ann Althouse said...

The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.

Perhaps, Madame, the Gray Lady doesn't have the respect for its readers said readers believe it does.; 7/20/10, 9:57 AM
Henry said...: It's hard to hit back twice as hard at complete mush.; 7/20/10, 9:58 AM
bagoh20 said...: So the document limiting government powers should be interpreted to expand them as much as possible?

Got it. College, Grad school, all for nothing or is that actually where she learned such wisdom?; 7/20/10, 10:00 AM
MadisonMan said...: I would say Kagan should be approved because Obama nominated her, and he's President.

But that argument wouldn't work very well for the NYTimes about half the time.; 7/20/10, 10:01 AM
ark said...: I know a number of people, who really ought to know better, but whose attitute toward government is that the government should be permitted to do absolutely anything it wants, so long as they are personally in favor of the particular actions in question.; 7/20/10, 10:03 AM
The Drill SGT said...: ark said...
I know a number of people, who really ought to know better, but whose attitute toward government is that the government should be permitted to do absolutely anything it wants, so long as they are personally in favor of the particular actions in question.

Hitler, Stalin, Mao, Pol Pot, and Chavez would certainly agree. Mussolini just wanted to talk about trains...; 7/20/10, 10:06 AM
George said...: "The idea that constitutional law stands apart from political preferences is nowhere to be found."

Wow, you're just now discovering that the left-wing in this country views the Constitution as an impediment (with the exception, of course, of abortion rights).; 7/20/10, 10:09 AM
Anonymous said...: Because governments can only do good things with increased power.

The average NY Times readers have lived, what, all of 55 or 65 years on the upper west side, and things have consistently only gotten better.

That alone is sufficient data to prove the NY Times' argument.; 7/20/10, 10:09 AM
Anonymous said...: I would say Kagan should be approved because Obama nominated her, and he's President.

I agree.

But that argument wouldn't work very well for the NYTimes about half the time.

LOL! So true.

I know a number of people, who really ought to know better, but whose attitute toward government is that the government should be permitted to do absolutely anything it wants, so long as they are personally in favor of the particular actions in question.

I do, too. Most wouldn't recognize themselves as being one of those people, however. ;-); 7/20/10, 10:09 AM
Hoosier Daddy said...: ... because it empowers Congress to give us "some of the best things that government has done for the better part of a century, and some of the best things that lie ahead."

Like a $12 trillion national debt and $68 trillion in unfunded liabilities?; 7/20/10, 10:10 AM
I'm Full of Soup said...: To be farm, I bet the NYT views more and more centralized govt and centralized control as good for their business model. While less centralization and more states rights and variety is not so good for their business model.; 7/20/10, 10:13 AM
I'm Full of Soup said...: Doh! I meant to say "To be fair" not farm.

wv = testican =where the NYT would like conservative men to put theirs.; 7/20/10, 10:16 AM
Anonymous said...: This comment has been removed by the author.; 7/20/10, 10:23 AM
pst314 said...: The Constitution? How dare you talk about a mere Constitution when I want to talk about the Birther agenda?
--Mick, sooner or later; 7/20/10, 10:24 AM
Anonymous said...: But constitutional law doesn't stand apart from political preference. It probably should, but it doesn't.

The constitution has of course been "enforced" by the courts against the will of the political majority in the past, but that's only because the political majority wasn't strong enough.

God doesn't say what the constitution means; the politico-media-academic establishment does. Get enough of those people on your side and you can interpret it however you want.

Incidentally, isn't it interesting that the NY Times seems to be at a high point of its political power? Their business is in the shitters, but their ties to the Establishment seem to be stronger than they've ever been.; 7/20/10, 10:24 AM
Scott M said...: Wow, you're just now discovering that the left-wing in this country views the Constitution as an impediment (with the exception, of course, of abortion rights).

That's pretty funny considering the Constitution has nothing to do whatsoever with abortion rights. I believe the word you're looking for is "penumbra". If that doesn't work, how about "invented". If that still doesn't work, try "selfish".

Not directed at you in particular, George, just the peeps it applies to.; 7/20/10, 10:25 AM
Scott M said...: @AJ

To be farm, I bet the NYT views more and more centralized govt and centralized control as good for their business model.

Does one need pharmaceutical help to become farm?; 7/20/10, 10:27 AM
Dust Bunny Queen said...: The government doesn't GIVE us anything that we, as working tax payers, don't pay for.

The government doesn't GIVE me anything. I don't get free food, free rent, free money, free anything. I PAY.

Many of the 'things' that the government is foisting upon me, in the sense of policies: I don't want, didn't ask for and I don't need.; 7/20/10, 10:29 AM
I'm Full of Soup said...: DBQ reminded me of the little song:

I owe, I owe, it's off to work we go.; 7/20/10, 10:37 AM
Anonymous said...: Does one need pharmaceutical help to become farm?

Nah, you just have to get plowed.; 7/20/10, 10:42 AM
Unknown said...: George said...

"The idea that constitutional law stands apart from political preferences is nowhere to be found."

Wow, you're just now discovering that the left-wing in this country views the Constitution as an impediment (with the exception, of course, of abortion rights).

It's been the unwritten mission statement of the Democrat Party since Woody Wilson.; 7/20/10, 10:42 AM
Kirby Olson said...: Roosevelt's attempt to expand and pack the court failed, but the Demo group still wants to demolish the constitution, and turn it into a document that underwrites their totalitarian will to power.

The notion of checks and balances has to go out the window for them to accomplish this.; 7/20/10, 10:56 AM
former law student said...: In a pro-Kagan editorial, the NYT argues that we should support the most expansive interpretation of the Commerce Clause

Man, I'm just not seeing it -- the holding of the Rehnquist Court in Lopez -- which is where the NYT appears to me to be -- does not seem to me to be the most expansive interpretation of the Commerce Clause.

But the NY Times messed up by linking to the oral arguments in Graham and not the oral arguments in Comstock. Where Kagan had not even made any Commerce Clause arguments in her brief. But at oral argument, she did concede that those likely to offend sexually upon release from Federal custody could commit Federal sexual crimes based in the Commerce Clause, like transportation of minors across state lines. Which statute complies with Lopez, because it deals with people moving in interstate commerce.; 7/20/10, 10:56 AM
Larry J said...: The government doesn't GIVE us anything that we, as working tax payers, don't pay for.

The problem is that there are a whole lot of people who get stuff from the government who aren't working taxpayers. "He who robs Peter to pay Paul can always count on the support of Paul."

As for the Constitution, why don't we just face reality and rename the Supreme Court the "Department of Making Shit Up."

Can't find something you want in the Constitution? Make it up. Or go cherrypick foreign laws until you find something somewhere that supports what you want to do. That's what all of the cool kids in DC are doing these days.; 7/20/10, 10:57 AM
ricpic said...: The communist/statist/NY Times argument has always been and continues to be, "We're robbing you for your own good," since the common good is your good, even as our fangs pierce your neck.; 7/20/10, 11:04 AM
Richard Dolan said...: "The idea that constitutional law stands apart from political preferences is nowhere to be found."

Constitutional arguments are not often phrased in naked political terms as the NYT does, but the line between the two certainly can get fuzzy. It becomes especially fuzzy with arguments premised on a 'living constitution' that judges are supposed to adapt to changing conditions.

It's odd that Kagan's nomination has focused on the Commerce Clause, which always brings with it the "necessary and proper" clause as well. It's as if we're hearing Jefferson and Madison railing against Hamilton's notion of implied powers all over again, in a debate that will never end. An expansive view of federal power under the Commerce Clause was originally held by conservatives (the Federalists), and was opposed by the tribunes of the common man (Jefferson's republicans). Slavery and then industrialization scrambled the sides, with conservatives ending up emphasizing the limitations of Commerce Clause power when the Progressives and later the New Deal ruled the roost. Until that switch in time to save nine, that is.

Today, it's almost an issue-by-issue thing: lefties like a broad reading of the Commerce Clause in some cases but not others (e.g., federal limits on punitive damages, federal preemption of mass tort suits against vaccine manufacturers and others, national standards for manufactured goods, etc.). Conservatives can be just as inconsistent.

Given the landscape, it's hard to say that either side (and there are more than two) has a unitary theory of the Commerce Clause/Necessary and Proper Clause. But the NYT has no interest in any of that, let alone the historical or textual issues. Their focus is purely about power, which (according to them) exists if/when used to accomplish what they want, and does not exist if/when used to accomplish ends they dislike.

That approach is (obviously) opportunistic and open to charges of hypocrisy. One could (many do) say the same about theories of the Commerce Clause that, just by happy coincidence, generate results that accord with the theoretician's political values. But at least the latter approach gives a nod to the notion that the issue is one of law, to be decided by resort to recognizably legal arguments. The NYT isn't doing Kagan, or the lefty constitutional position, any favors by asserting that it's all just politics by another name.; 7/20/10, 11:04 AM
former law student said...: The NYT tells us that some conservatives are "infuriated" because Kagan "refused to take the Republican bait and agree to suggest limits on that clause’s meaning."

Considering the Constitution limits the Supreme Court to considering only "actual cases and controversies," I would be disappointed if Kagan had defined the boundaries of the Commerce Clause with respect to any and every possible case that might come up during her tenure, before she even got the job.; 7/20/10, 11:13 AM
Pastafarian said...: FLS, I have a serious question here, not an argument; and it's probably embarrassingly naive, as I'm not well-versed in law:

Why would Kagan's laying out her interpretation of the meaning of the commerce clause disappoint you?

Why is it that supreme court nominees have to hide their views like Christmas presents? Why can't they just admit, for example (since it's simpler) that they interpret the second amendment as strictly a collective right that grants the right to keep and bear arms to well-regulated militia groups?

Why can't they just tell us how they would vote on a given case? Would telling us somehow compromise their "impartiality"? (As if there's any chance in hell of Kagan voting for gun rights or against abortion rights once in the next 30 or 40 years of her term). And how would telling us how they would have ruled in a past case affect their impartiality? They could always rule the other way and explain that the specifics of the case were different, or they changed their mind. It's not like they're committing themselves to anything.

I guess that's a series of questions, but it boils down to one thing: Why can't they tell us how they'll vote?; 7/20/10, 11:26 AM
holdfast said...: The government doesn't GIVE us anything that we, as working tax payers, don't pay for.

Wrong - the Chinese pay for it, and our grandchildren will have to pay them back.; 7/20/10, 11:31 AM
former law student said...: Pasta -- they're not supposed to prejudge their cases. They're supposed to follow the law, which is hard, because the law is constantly evolving. In any case, advocates on each side will argue for their view of the law. Our adversarial system encourages vigorous advocacy, which should produce the most complete and best reasoned arguments on both sides of any given issue. The Court should pick the better view.; 7/20/10, 11:32 AM
Pastafarian said...: FLS -- so can Kagan tell us how she would have ruled on a recent decision, given the state of the law as it was when it was decided?; 7/20/10, 11:49 AM
Anonymous said...: "Wrong - the Chinese pay for it, and our grandchildren will have to pay them back."

And the only way it will ever happen is for our grandchildren pay them back with dollars worth a fraction of the one's we borrowed - e.g. inflation is our only hope.; 7/20/10, 11:50 AM
Trooper York said...: Elections have consquences. The Big O is entitled to choose his own millstone to have around his neck. His first choice Lynn won't be available for another ten years or so and he won!

"RELEASE THE KAGAN!"; 7/20/10, 11:55 AM
sunsong said...: No matter how *expansive* you are, I don’t see the Commerce Clause empowering Congress to *mandate* that citizens buy things. That violates personal rights. I’m not really opposed to finding the Constitution to be *mysterious* and *imperfect* and therefore malleable. However, that does excuse extremism from either side, imo. And both sides want to Nanny us with their version of big, intrusive, government.

I am impressed by Ken Blackwell and Ken Kuklowski who, it seems, can see right through Obama and predicted every trick he would come up – including now saying if you won’t accept the Commerce Clause or the idea of the mandate really being a tax – then think of it as being the government promoting the General Welfare. It’s a short article:

ken and ken; 7/20/10, 11:58 AM
Methadras said...: This comment has been removed by the author.; 7/20/10, 12:11 PM
Methadras said...: Why does the NYT still exist? At this point they've simply characterized the Constitution, like their other incoherent leftard ilk, as mere toilet paper and totally clueless as to the irony of their own words.; 7/20/10, 12:13 PM
BJK said...: Just look at their examples:

Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor.

Every one of them imposed an additional regulatory burden on American industry, making it more difficult to compete in the global economy.

"Hey American business owners, you can stay here and pay more for your workers...then pay even more to stop your facilities from belching pollutants into the air and water...and try to compete with products from other countries with fewer built-in costs. Or, you could just move your production work to those other countries directly, and get a competitive advantage out of doing it. Don't worry about the workers you'd be displacing; we'll end up finding them government jobs....or continue to pay them to not have jobs."

Yes, I left out the Civil Rights Act from my criticism, because I'm not Rand Paul-level stupid.; 7/20/10, 12:17 PM
MadisonMan said...: Roosevelt's attempt to expand and pack the court failed, but the Demo group still wants to demolish the constitution

Just to be clear: Roosevelt's court-packing was in no way unconstitutional.; 7/20/10, 1:03 PM
Sofa King said...: FLS -

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy- muted, polite, and restrained-but all that good order comes at great cost.; 7/20/10, 1:04 PM
former law student said...: No matter how *expansive* you are, I don’t see the Commerce Clause empowering Congress to *mandate* that citizens buy things.

Congress can tax and spend for the general welfare. Nothing prohibits Congress's waiving taxes on those who buy health insurance.

Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor.

Every one of them imposed an additional regulatory burden on American industry, making it more difficult to compete in the global economy.

Every one of them reallocated the costs of production from society as a whole back to the industries responsible. Industry may seek to impose their "negative externalities" on thee and on me, but I think they should shoulder their own burdens. The effect of child labor is clearer when you liken them to illegal immigrants -- or, in the case of the Rubashkin family, you hire immigrant children to work in your slaughterhouse, in a stunning and successful attempt to bring Upton Sinclair's The Jungle up to date.; 7/20/10, 2:08 PM
former law student said...: Sofa -- Bork was pomping and strutting, relishing bringing his professorial nature to the court. Name any previous candidate so self-absorbed.; 7/20/10, 2:09 PM
dick said...: fls,

pomp and strut he might have but was he right or wrong in what he said.; 7/20/10, 2:44 PM
sunsong said...: Me: No matter how *expansive* you are, I don’t see the Commerce Clause empowering Congress to *mandate* that citizens buy things.

FLS: Congress can tax and spend for the general welfare. Nothing prohibits Congress's waiving taxes on those who buy health insurance.

The Commerce Clause does not empower the Congress to tax people. The Bill specifically sites the Commerce Clause for its justification of the mandate. Nor does it say that it is *waiving* a tax for some while imposing a higher tax on others.

And, as I say, no matter how *expansive* you are it is not Constitutional to *mandate* that citizens buy things. That violate personal rights.; 7/20/10, 3:23 PM
former law student said...: The Bill specifically sites the Commerce Clause for its justification of the mandate.

Does it? That would show prudence on the Democrats' part. The lack of showing a nexus to interstate commerce in the bill torpedoed the GunFree School Zone bill. But the bill doesn't need to rely on the Commerce Clause to be valid.

Another question is can the bill survive a Fourth Amendment challenge? A lot of bodies will be probed by, and a lot of personal data seized by government sanctioned personnel.; 7/20/10, 4:33 PM
sunsong said...: …In brief, the argument is: The tax is not an excise tax, and it could not be a constitutional excise tax because it is not uniform. The tax is not an income tax, and it could not be a constitutional income tax, because it is not a tax on derived income. Accordingly, the tax must be a capitation or direct tax. Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” The tax is not apportioned, and therefore is contrary to Article I, section 9….

david kopel; 7/20/10, 4:33 PM
sunsong said...: But the bill doesn't need to rely on the Commerce Clause to be valid.

That is your opinion. But are there five Justices who agree? Especially given that the Bill specifically uses the Commerce Clause to attempt to *mandate* that Americans citizens buy something - whether they want to or not.

And yes, there are real violations of personal rights in the idea of a government attempting to deny basic decisions and choices that fall within the realm of personal liberty.; 7/20/10, 4:39 PM
gk1 said...: Considering how hastily obamacare was tacked together I can imagine there are all sorts of legal mines that will sink it in its present form. After a large communal insurance pool is shot down, what's left of it? Just another government entitlement train wreck hemoraging money. The Supremes would be doing us a favor putting it out of its misery. But its going to take a few years to get there.; 7/20/10, 5:33 PM
DADvocate said...: The simple truth is that government can't give you anything without taking something away.; 7/20/10, 7:10 PM
David said...: Laughing at the NYT is all fun, but "because government is good" is basically the reason given by the Supreme Court for the constitutionality of the administrative state.; 7/20/10, 7:12 PM
Eric said...: No matter how *expansive* you are, I don’t see the Commerce Clause empowering Congress to *mandate* that citizens buy things.

If you take an expansive enough view of the commerce clause and the 14th amendment, the government can do anything.; 7/20/10, 7:53 PM
ken in tx said...: In the sense that it was not prohibited by the text of the constitution, court packing is not unconstitutional. However, in the sense that it is contrary to custom and precedent it is unconstitutional. This is a stronger definition of constitutionality and I think that is why FDR’s attempt failed. This second sense is the one the Brits use to talk about their largely unwritten constitution.; 7/20/10, 8:35 PM
JAL said...: When is the NYT going to realize that perpetual motion machines -- which is what big government is -- do not work?; 7/20/10, 9:09 PM
Jum said...: What an intellectually and morally bankrupt editorial. The NYT doesn't even pretend that there is some particular principle of law or vision of the Constitution which forms the basis of its support of Kagan. They just baldly say, "Hey we like her because she's going to write decisions which will empower the federal government to do whatever it wants to do under the Commerce Clause. She'll kill any power the states have, and that's fine by us."

And the Times can be that open about it. Who's gonna stop them? In the reign of The One there is no need for the Mainstream Media to go to the bother of constructing those elaborate constitutional pretenses. No, today they can just come out in the open and proudly say, "We're determinist; we always were. So just eat it, you Flyover People."; 7/21/10, 12:41 AM
Revenant said...: But the bill doesn't need to rely on the Commerce Clause to be valid.

It might. The other plausible basis for the bill is the taxation power, but the authors of the bill were careful to not use that power as the basis for the law (because, hey, they didn't want to admit they were raising taxes).; 7/21/10, 2:41 AM