Tuesday, August 14, 2012


It’s the end of summer. I plan to stop sharing my “wisdom” with the world for a few months. Too much else to do. But I wrote this recently, and it shall be my summer’s Parthian shot. My breakdown of where we stand:

Economic: we appear to have reached the point where the Keynesian “hair of the dog” no longer cures the old economic hangover from the latest bubble. Yet we are pouring in that “remedy,” despite its evident failure. There is no strong indication Romney would be much different on the Keynesian front, though he might give big business some more breaks. Even if he wins and does so, it seems the world, and the U.S. in particular, is in for decades of hangover. The debt is mountainous, the money has been largely wasted, somehow the piper will be paid. We are in a heap of trouble—a heap about $50 trillion high. (Read Reagan’s old budget director David Stockman: http://lewrockwell.com/stockman/stockman12.1.html). Worst of all, the whacky ideas that got us here, the general economic apostasy of most of the intellectual class (Left and Right), show no sign of losing ground in the general population, leading to the likelihood that every false remedy will be tried until it nearly kills us, rather than good old-fashioned honest money, paying for what you need, and trying to save some.
Civil liberties: Putting an existing trend on steroids, the Bush administration got a lot of us used to the surrender of our rights, even and especially ones noted in the Bill of Rights. The growth of the TSA shows that these rights are unlikely to be respected in the near future in America. Neither party wants to reverse these trends. Torture, indefinite detention of suspects, unsupervised killing by the executive branch, all unthinkable on all sides a short generation ago, seem here to stay. When I grew up it was proverbial to say of some proposed action, “why not? It’s a free country!” That makes no sense now. On the civil rights front, we went from forcing racists to use their property in a non-racist way, the way the majority saw it, to forcing religious groups to use their property in the way the majority thinks is right. I am fervently against racism, but also against the legal coercion we fought it with, and the entrenched belief in coercion where we now stand. (To be clear: the government and the law should have been made color-blind, but it should have continued to allow individuals, as well as businesses and clubs, to discriminate racially if they so chose—not because racial discrimination is morally acceptable, but because freedom is incredibly important, and crushing freedom for the sake of moral goodness is not wise. Cultural pressure should have been applied to such businesses and clubs—as it was in the 1950s in baseball and other fields, for example. I understand some think this would have failed, but I believe it would have worked, without the massive coercion. Using government coercion instead put a new and mighty stick in the hand of government—that stick is still there, ready for use against any minority.)
Religious liberty: Catholics and evangelicals appear about to be pushed out of every part of the culture but the narrowly religious by the health insurance rules alone. (Rare potential bright spot: a Romney victory might avert this, perhaps temporarily, perhaps for good.) This is a real disaster, a big step toward second-class citizenship. The bill was upheld on the absurd ground that it is a tax, with the deciding vote cast by a “conservative.” With friends like these, who needs enemies? (One paradox of modern “liberals”: they talk “tolerance” until blue in the face, but many have little interest in tolerating those who disagree with them, as the responses to the HHS mandate show pretty clearly.)
The culture wars: homosexual marriage and abortion seem ever more firmly entrenched as self-evident natural rights in the minds of Americans. True, abortion is distasteful to huge percentages of Americans, but that does not seem to translate into majority votes to overturn it. An entire generation of votes for Republican presidents on these grounds has done nothing to change this: Casey was decided 8 to 1 in favor of upholding Roe, with 8 justices appointed by Republicans. Millions of Americans do not want to think about (a) what is a human being, (b) why are all innocent human lives sacred, and (c) what is logic. Meanwhile, marriage is more and more seen as a purely human response to sexual and romantic yearnings of human beings, with only a vague and accidental connection to children—and if so, why put any limitations on it? Why deny it to any group? The reasoning is good, it’s the premises that are not—but we aren’t changing the thinking of our secular brothers and sisters on that one (and we barely practice the right premises ourselves). We keep thinking that if we elect a Republican president we can somehow hold the culture war line, but the hard-core culture warriors don’t win nominations. When Republican presidents do get elected, they all seem to prefer, once in office, to let others lead on this issue. Winning an election doesn’t change the culture.
Religion: Protestants are as divided as ever, and the theologically faithful are seduced by the Republican Party. Catholics remain saddled with some of the most hideous, saccharine religious music in human history, obviously written by composers who grew up on Disney tunes and almost nothing else.
Constitutional interpretation: there is still precious little interest among the major parties, in a consistent understanding of the original meaning of the Constitution. In the Democratic Party, there is no interest at all. Millions of Republicans seem to think they are interested, but most care about such a tiny handful of issues that it is impossible to give them credit, even in apparently major movements like the Tea Party, for actually caring about the fundamental principle. It’s almost all opportunism: where an original reading coincides with their political desires, they are big originalists; where it does not, zero interest. Ron Paul was the only bright light here.
Foreign policy: the whole establishment is convinced that our policy of endlessly thumping foreigners, without declaring war, without realistically defining success, is the key to success. ("You just have to keep plugging away.") There are minor disagreements as to which foreigners to thump, and how hard. The idea that we might be on the wrong side in some cases, or destabilizing countries that need stability desperately, or imposing our will and desires on countries with starkly different cultures from ours, is rarely even entertained. The idea that we have actually created the enmity cannot be considered, as raising the idea without horror and disdain is considered proof of a complete lack of patriotism. (This is logically untenable, but there you are.) (One of the paradoxes of modern conservatism is that deeds and habits that for most people are obviously, wildly unacceptable at the personal level—unprovoked violence, pre-emptive removal of people who dislike you, bullying, unappointed policing of the neighborhood, “leadership” as dominance—are celebrated at the national level. People who believe in loving their neighbors believe the number of civilians killed by our forces, or in the anarchy unleashed by our meddling, is just not our fault—and they won’t listen to anything that tells them otherwise.)

Joy: God is in charge. What we have to do is clear: practice love and virtue. (If God were not in charge, I would see no room for joy.)

Optimism: On all these fronts, there are significant counter-currents. Knowledge of and interest in a different approach grows. An economic default or hyperinflation (not what I want, of course) might actually discredit Keynesianism, and even lead to a return to some clear thinking about economics, where value is seen in things that satisfy needs, not in numbers juggled by government. (It would be incredibly painful, though.) There is growing interest in the Constitution and civil liberties: Ron Paul is greatly to be thanked for much of that. The war doubters are not terribly energized, but our numbers might be growing. The armchair warriors seem a bit less enthusiastic. The Catholic Church has a wonderful new translation of its new Mass, much less bland and washed out, and some exciting new leaders. And, fundamentally, we usually muddle through, and things are rarely quite as bad as they seem—although when the Mongols invaded, or when the Communists or the Nazis came to power, they demonstrated that many times things are every bit as bad as they seem—or far worse.

Tuesday, July 3, 2012

Liberals, Conservatives! There is Something for Everyone in Roberts’ New Rule!

What’s next? Congress may order you to buy a bicycle, an electric car, or a subscription to NPR. Or a gun, an American-made car, or corporate bonds of a weapons manufacturer!


“Conservative” Chief Justice Roberts has interpreted the Constitution as giving unlimited power to Congress, as long as the statute is framed as a tax. Consider what Congress can now mandate that you purchase, as long as they attach a penalty that the Supreme Court can construe as a tax (and even if Congress and the President strenuously deny it is a tax).

First, for my liberal friends, who want healthy Americans, a clean environment, and a well-informed public, here are some mandatable purchases: a bicycle. An electric car. A subscription to NPR. Corporate bonds issued by government-certified recyclers or clean-energy producers, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. Compensation for carbon use above a certain minimum. Solar panels, or insulation, if one is a house-owner. This is merely suggestive, but none of these are so different from health insurance, or Social Security, for that matter, which is also built on the “taxing power” of Art I, Sect 8. In all these examples, a case can be made that the vast majority of Americans ought to purchase these things. Mandate them! Just as with health insurance, the penalty can be seen as “a tax on those without x.”

Happy, liberals? Well, don’t forget that government has a nasty habit of falling into conservative hands. Conservatives love to use the powers bequeathed them by prior administrations, just as liberals do. So expect that you may be ordered to buy: a weapon or weapons to defend your home, and an annual quota of ammunition (after all, it’s an American tradition, and target practice is needed: heck, this can fall under the militia power too). An American-made American flag, at least 8 feet by 12 feet. This will stimulate the economy. Hey, an AMERICAN-made car! (Or any American-made manufactured object we can still find.) War-bonds, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. These will support the war on terror, the war on poverty, and the government’s efforts to promote a “business-friendly ownership society.” Corporate bonds issued by government-certified weapons producers and security companies! After all, it is every American’s duty to help keep our country safe! The health freeloaders who go without insurance and then get the rest of us to pay for their heart operations are the same as, or worse than, the security freeloaders who refuse to pay any extra for the war on terror, but reap the benefits of working in peace and security, right? Perhaps you get the picture, my liberal friends?

And let’s not forget the ratchet effect: government programs don’t die because the “other” party gets into power—no, the “other party” simply enacts its favorite programs, and leaves the existing ones in place.

Now our debt will really soar—oh wait, this new power can be used to order all Americans to buy U.S. government debt! It will be a “tax on non-contributors to government debt.” Now we will really “owe it to ourselves!”


But, this is a legitimate way to look at the Constitution, right? After all, somewhere the Constitution gives Congress the “power to tax.”

Let’s consider that argument. Here is the Constitution, Article I, Section 8, which begins “Congress shall have power…”

At the beginning of this section are the power to tax and to “provide for the common defence and general Welfare” and at the end is the “necessary and proper” clause. But do these give Congress power to do whatever it chooses?

No one thought so for over a century. Why not? Notice the list of “enumerated powers” in the middle here. Do these have any meaning? The very existence of a reasonably long list of powers strongly implies that they, and what is clearly implied in them, are the only powers “Congress shall have,” and the general language at the beginning and end is only meant to explain the enumerated powers. (Exception: a few other minor powers here and there explicit in other articles or sections.) Otherwise, the whole of Article I would read, “Congress shall have power to enact legislation for the common defence and general Welfare of the United States.” Period. If the Founders had meant by the preamble to grant this full power, there was no need to waste ink explaining what some and only some of the individual powers under that wider power were, and, it would confusingly suggest that the enumerated powers limit Congress. Of course, they were immediately seen and interpreted by everyone to limit Congress’ power—to themselves. Otherwise they are redundant, senseless, and completely misleading.

To support this, consider the Federalist Papers, written (mostly by Hamilton and Madison) to persuade New Yorkers to ratify the Constitution (they nearly failed).

Read no. 33, where Hamilton describes how the “necessary and proper” clause refers only to the “declared” powers, such as taxation. As with “all other powers declared in the Constitution” (emphasis added), this clause simply states, according to Hamilton, the laws “necessary and proper” may be passed “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution.” He continues, “And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” In other words, the “necessary and proper” clause, according to Hamilton, authorizes only laws to execute “powers declared in the Constitution.”

Now find Federalist Papers no. 41 in the link above, Madison’s “General View of the Powers Conferred by The Constitution.”  Here is Madison (in paragraph 21) on that introductory clause of Article I, Section 8: “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” That is the belief often urged today, right? Madison’s next sentence heaps scorn on the idea: “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” He spends the next three paragraphs dismantling this notion, and urging Americans not to worry that such an obviously false interpretation will ever prevail. Remember, this is how supporters of the Constitution presented it to the public.

Another piece of evidence that these articles limit the power of Congress to what they themselves clearly state, as far as the Constitution has always been understood, is the existence of the whole “commerce clause” jurisprudence: the attempt to tie this or that law to the power to “regulate commerce…among the several States.” If the Congress could simply say that it was legislating “for the general Welfare” it would never have needed to cite the Commerce Clause. Any law that failed to be supported by the Commerce Clause could have fallen back on the general Welfare clause.

Conclusion: since before the Constitution was ratified, it was understood that the powers of Congress were limited by the Constitution. But according to the Roberts’ decision, this is not the case: Congress can lay a penalty on any action and call it a tax. (And even the New York Times admits, with understatement: “To some extent, calling it a tax does break new ground. ‘Nobody here can think of an example where you pay a tax if you do not buy something,’ said Howard Gleckman, a resident fellow at the Tax Policy Center in Washington.) There are no limits on Congressional action. If this is correct, these enumerated powers have no meaning whatsoever. Any of them could be put into practice simply by passing a law directing them to be done, imposing a penalty in the case of inaction, and calling that penalty a tax. But this belief in the unlimited power of Congress to do anything it wants has been directly contradicted by every informed judge and reader of the Constitution until the early 20th century. It therefore cannot have been part of any original meaning of the Constitution. And therefore Roberts is clearly wrong. But worse, he has pushed vast new powers onto the plate of Congress. Even Social Security, even if Congress had no warrant in the Constitution to mandate the program, really was a tax: it said, if you have income, pay up. Period. This is an open-ended new power.

Wednesday, June 27, 2012

Do You Want a “Restrained” Umpire?

Ross Douthat, the New York Times house Catholic conservative, in his June 26 essay “The Liberal Embrace of Judicial Restraint” gets the matter of conservatives and the Constitution flat-out wrong, in an instructive way.

“For decades,” he begins, “the idea that judges should show more deference to the democratic process was the province of social conservatives and right-wing populists.”

But don’t conservatives revere the Founders? Douthat’s idea is the opposite of what Alexander Hamilton and James Madison wrote in the Federalist Papers. They did not want judges to show any “deference to the democratic process” at all! They wanted them instead to interpret the law, and, in case of conflict between a law passed by the legislature and the Constitution, to insist that the law was subordinate to the straightforward meaning of the latter document. As Hamilton wrote in the Federalist Papers no. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” As Madison wrote in Federalist Papers no. 41, “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” That is not at all the end of Madison’s scorn for those who misinterpret, in his view, the plain meaning of the text of the Constitution. (Note, in the context of this quotation, that he assumes that the normal rules of construction and interpretation of a text apply to that document.) Hamilton in particular is quite clear that it is often precisely in being willing to overturn the result of “the democratic process,” as embodied in an act of legislation, that the courts fulfill their role of insisting on the primacy of the Constitution among our laws.

Douthat continues, “…conservative intellectuals complained that the Court’s approach to abortion (or civil liberties, or religious expression, or criminal justice — the list was long) amounted to a kind of ‘judicial usurpation of politics.’”

The point of the complaint, if it meant anything, was that the judges were misinterpreting the Constitution to find rights that were not there, not that they were “active” per se; and, conversely, that they needed to interpret it correctly, not “be restrained.” Those who let Dred Scott and Plessy v. Ferguson stand showed great restraint, but restraint is not what conservatives should stand for—it is simply allowing what is there to remain. If what is there should not be there, “activism” is precisely what is called for.

Douthat goes on to confirm his misunderstanding through his use of the “umpire” metaphor:

“In the first five years of Roberts’ tenure, the justices overturned an average of 1.6 precedents and invalidated an average of 3 laws per term. By comparison, the Warren Court overturned 2.7 precedents and 7.9 laws per term; the Rehnquist Court overturned an average of 2.4 precedents and struck down an average of 8.2 laws. (Those numbers make Roberts’ famous confirmation-hearing promise to be an umpire rather than a player look more convincing than his critics have allowed.)”

Umpires are “active,” we might say, when they call a foul. After all, the “restrained” thing to do is to let play continue. Why “actively” interfere? But that is the point: umpires are there to enforce the rules. Comparing the number of fouls called by one umpire with another is absurd unless we compare it to the actual number of fouls committed. Do we want the game played according to the rules? Then we want all serious fouls called. (Yes, it is possible to call too many fouls, but only by calling those that do not really affect play.) Do we want our legislation to respect the Constitution? Then if legislation does not, and if it affects American life at all seriously, we want the Supreme Court to overturn it.

Douthat’s conclusion: “…when the next confirmation hearing comes around, left and right will share one premise in common – that judicial modesty is one of the best possible qualifications for a position that offers so much untrammeled power and brings so much temptation along with it.”

That’s like insisting on a “modest” umpire: one who doesn’t call too many fouls, serious or not.

Activism/shmactivism, restraint/shmaint. I want legitimate interpretation of the Constitution. If we can’t have that, let’s laugh at the charade and admit that what Madison and Hamilton sold us is 99 percent gone. But we conservatives don’t call for an “original meaning” interpretation very often—we would rather go along and get along, take turns running the show as it is—and really applying the original meaning would upset the whole apple cart: undeclared wars, the New Deal, the Great Society, Social Security, Medicare and Medicaid—most of what the Federal Government does is unconstitutional, and we know it. The cry of “constitutional” is cheap rhetoric with us, not something we really want. “Activism/restraint” is a meaningless diversion from the real issues.

Or, perhaps, is that the point?

Thursday, January 5, 2012

Ron Paul: a Conservative Voter’s Guide, Part I
Paul’s rhetoric, moral stance, and foreign policy, rightly understood, are outstandingly conservative

Ron Paul is by far the most conservative candidate in the race. He would be a great moral leader for the United States of America.

While some of my conservative friends would agree with that statement, others would think it outrageous. While granting his pro-life stance and respect for the Constitution, they still object: “Why he is a libertarian, almost an anarchist! And as for moral leader, he may have a fine personal life, but the only thing he seems to value is liberty. He never mentions the role of religion in public life. He has no sense of order, no sense of the government’s role in promoting healthy families, or in promoting morality. On top of that, his foreign policy sounds like one of surrender, if not treason.”

Since Paul could probably use a few more conservative votes in the primaries coming up out there, and conservatives still seem a bit unsure who is the conservative candidate, the issue is important. There is a great answer to each of these typical conservative objections to Ron Paul’s candidacy. Since I myself am a kind of conservative (a very-small-and-limited-government conservative, what F. A. Hayek called an “unrepentant Old Whig — with the stress on the ‘old’”), it seems I ought to try to explain to fellow conservatives why Ron Paul is, perhaps surprisingly, their man. This essay focuses on the first set of objections, Paul’s “libertarianism” and his rhetoric of liberty rather than morality.

The Rhetoric of Conservatives and the Founders

Rhetoric first. Actually, much of Paul’s rhetoric sounds like Ronald Reagan’s. When we hear Paul saying “…the Constitution was written very precisely to restrain the power and force of government and to protect the liberties of each and every one of us,” that would hardly have been a strange sentiment for Ronald Reagan, who was rather famous for his own saying that “government is not the solution to our problem, government is the problem.”

But we can go a lot further back. James Madison, advocating for the new Constitution (of which he was the unofficial “father”) before it was ratified, wrote (in the Federalist Papers, no. 51) “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself…”

Even more concerned about government tyranny is Thomas Jefferson, chief drafter of the Declaration of Independence, but (as few remember) drafter also of the Kentucky Resolutions, which begin “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government…” And again, in his draft for those resolutions, “in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” If Ron Paul’s rhetoric of the dangers of even our own government and the importance of liberty sounds strange to our ears, maybe our acquaintance with the Founding Fathers needs some refreshing.

But there is another problem. There is no doubt that Paul’s rhetoric occasionally presumes a lot of knowledge of his positions, and some of his statements, taken out of context, appear to say things he does not mean as a candidate, because he sometimes assumes his listeners know the Constitution as well as he does. (No one is perfect.) We are beginning with Paul’s “libertarian” rhetoric, but to understand it we need to look into Paul’s core political position, which he is famous for actually meaning and living by. When we understand that, almost all of his rhetoric makes sense for conservative voters—I’ll deal with the part that doesn’t shortly.

Paul’s Political Bedrock: the Constitution

That core for Ron Paul is the Constitution, the bedrock of his political faith and message. Google “Ron Paul” and “Constitution” and one of dozens of things you find will be Paul saying (in the same speech quoted above) is, “I am an advocate, a very strong advocate, of following very strictly the rule of law: the Constitution of the United States…” All conservatives talk about the Constitution occasionally, and all conservatives reverence it, right? But when is the last time we actually looked at it? Why is it important?

The Limited List of Federal Powers

The Founders began the Constitution with Congress, since they considered law fundamental to a government that would lead to ordered liberty. The President and the executive branch execute the law, which in the Founders’ eyes came second, and the courts interpret it, which is third. Let’s take a quick look at the things Congress is authorized by the Constitution to do or regulate through the laws and resolutions it passes. The list is in Article I, Section 8. I have summarized these already short statements to make them easier to follow, but you can look them up on-line here. The quick summary statements below use numbers to make them easier to follow (some paper copies use these numbers):

1, 2: tax and borrow (if you don’t have money, you can’t spend it).
3: regulate commerce (foreign and interstate)
4: make rules for naturalization, bankruptcy
5: money (not paper), standardized weights and measures
6: punish counterfeiting
7: establish post offices
8: patents and copyrights
9: set up lower courts (under the Supreme)
10: deal with piracy
11: declare war, grant “letters of marque and reprisal,” “captures”
12: raise armies
13: set up a navy
14: make rules for military forces
15, 16: organize and prepare the militia, and “call [them] forth” when needed
17: run the District of Columbia (as it became known)
18: pass the laws necessary for the specifically listed powers to be executed

How to Misinterpret Plain English

That is the entire list of powers of Congress. Now, the champions of a “living Constitution,” which is supposed to “evolve” along with the people (which means being “amended” unofficially by judges, rather than interpreted and applied by judges and amended by the people as the document itself provides), make heavy weather of two phrases in this list, “provide for…the general welfare of the United States” (in the first power of Congress) and “all Laws…necessary and proper” (in the last). These are supposed to grant Congress unlimited power to legislate on any subject their hearts desire, as long as it relates in some way to our “general welfare.” This is in fact the standard wisdom we are fed, over and over, often in our schools, certainly in the mainstream media. But that is certainly not what the Constitution says, in context. The “necessary and proper” clause is part of the eighteenth “power,” which states, in full, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof [emphasis added].” If you read what it actually says, it conveys no new power at all to Congress, only the power to execute the ones it is given in black and white.

In addition, many Americans were deeply concerned at the time of ratification, as is shown in the Anti-Federalist Papers, that the new Constitution would give the proposed federal government too much power. The people who finally voted to ratify the Constitution did so under the influence of the promises and explanations in works such as the Federalist Papers, which reassured them that the federal government’s powers would be strictly limited. (It is a bit bizarre to claim that what the people were told they were voting for, and thought they were voting for, doesn’t count!) In those essays, James Madison and Alexander Hamilton specifically denied that these very interpretations made any sense. On “the general welfare,” Madison notes, in Federalist Papers no. 41, “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” That is merely the beginning of Madison’s scorn and mockery for such an interpretation, which goes on for several long paragraphs. He makes his own view clear: this is merely a phrase describing the specific powers that follow, and no other interpretation makes sense at all. On “necessary and proper,” Hamilton, in Federalist Papers no. 33, is nearly as scathing: “But the same process [of thinking through the meaning of the power to tax] will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless [italics added, capital letters in original].”

Re-Reading the List of Federal Powers

Granted that the original ratifiers, the people of the various states, believed they were granting only these powers (and a handful of other minor powers in a few other places in the Constitution itself, e.g. Article III) to Congress. Still, these powers are not exactly organized the way we might do it today. To make our lives easier, let’s look at them again, grouped into “enabling,” “foreign policy,” and “domestic” (If it is a combination, that is indicated):


1, 2: tax and borrow (if you don’t have money, you can’t spend it, so you can’t do anything)
18: pass the laws necessary for the specifically listed powers to be executed

Foreign Policy:

3: regulate commerce (also a domestic power if interstate commerce)
10: deal with piracy
11: declare war, grant “letters of marque and reprisal,” “captures”
12: raise armies
13: set up a navy
14: make rules for military forces
15, 16: organize and prepare the militia, and “call [them] forth” “to repel invasions” (also domestic if used to “execute the laws” or “suppress insurrections”)


3: regulate interstate commerce
4: make rules for naturalization, bankruptcy
5: money (not paper), standardized weights and measures
6: punish counterfeiting
7: establish post offices
8: patents and copyrights
9: set up lower courts
15, 16: organize and prepare the militia, and “call [them] forth” if needed to “execute the laws” or “suppress insurrections”
17: run the District of Columbia

Take a second, long look at that domestic list, please! What kind of federal government did the Founders give us? When a woman put that question to Benjamin Franklin, he famously replied, “A republic, if you can keep it.” But what kind of Republic? Well, as Madison wrote in the Federalist Papers, no. 63, it was to be “a confederated Republic” (In the first 14 of the 85 Federalist Papers I gave up counting variations on the word “confederate” at 72—many of these are warnings against the establishment of four or five confederacies in place of the one union of the thirteen United States at the time, but most of the other uses of the word are completely positive). Hamilton wrote that the new Constitution created a “confederate republic” of the United States. He defined that in Federalist Papers no. 9 as “an assemblage of societies, or an association of two or more states into one state.” These other “states” were to remain in existence (and the word “state” certainly did not mean “an administrative sub-unit of a country” in 1787). In the design, there was to be a federal government that was to do just a handful of quite minor jobs on the domestic front. Almost all “government” would be done by the states. In a famous passage in no. 45, Madison gave a general description of the role of the federal government and the role of the states under the proposed Constitution:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

For at least 40 years or so (and to some extent for far longer), this is a reasonably good description of how the federal government actually operated. The federal government did almost nothing domestically! It actually followed, for the most part, the short list in Article I, Section 8. Alexis de Tocqueville came to the United States from France in 1831 to see how Democracy in America (the title of his eventual book) actually worked: his own parents had barely escaped the guillotine in the French Revolution, so he wanted to see democracy in action where it had done a better job. De Tocqueville found much to praise in American society and government, although he saw some dangers as well. He was concerned about a possible “tyranny of the majority,” but he discussed in Volume I, Chapter XVI some factors in the American system that helped avoid such tyranny. One factor he mentioned in a section heading:  “Absence Of Centralized Administration.” Can we imagine an observer writing that about the United States today? He went on, “In the American republics [i.e. the states] the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of even interfering in them.” That was the original design, and it was in force! If the central government began to regulate those “secondary affairs of society,” de Tocqueville feared, “freedom would soon be banished from the New World.”

Q: Why Does Paul Sound Libertarian? A: the Constitution.

The constitutional design of the United States government is the key to understanding how Paul’s rhetoric fits his vision of government, and why the conservative complaints noted above don’t really fit. You can’t say the Constitution prescribes a “libertarian” approach to government in general, since it says almost nothing about the government of the states, beyond forbidding them a handful of powers (and in the Tenth Amendment, noting that state powers not delegated to the federal government were “reserved” by them)—and that is the government that touches the ordinary lives of citizens, in the constitutional design. On the other hand, it certainly does prescribe a rather libertarian vision (in the sense that government should be limited to protecting rights) for the federal government. According to one conservative objection linked to at the beginning of this essay, “Paul’s opposition to moral legislation betrays his failure to appreciate the government’s divine mandate to punish evil and praise good.” But this misunderstands the original plan for our federal government, which the author praised earlier in his article. Since the President of the United States has very little to do with the ordinary lives of Americans under the Constitution, it is actually not vital for him to talk about the role of religion in public life, the importance of order, the government’s role in promoting healthy families, or the promotion of morality. As President, he should have nothing to do with those things. In the Founders’ design, which the American people ratified state by state, all the moral legislation that punishes evil and praises good, including legislation about marriage and murder and so forth, belongs at the state or local level. Therefore, Paul’s lack of interest in such legislation at the federal level should not be a mark against him, but a reason to praise him. The federal government’s “few and defined” powers have to do almost exclusively with money, commerce, and a few miscellaneous minor issues. Paul has worked as a Congressman in and is a candidate to be the head of the federal government, not the government of one of the states. If conservatives want their government to address these other issues, then according to the Constitution they need to demand such rhetoric and such action from state, not federal, officials. If they demand such rhetoric and action from the federal government, after actually reading the Constitution, that is hypocrisy at a very profound level. What kind of moral vision of government is built on hypocrisy? (And trying to amend the Constitution to allow this kind of expansive federal power would be, politically, surrender to the Democratic Party, as well as a denial of decades of Republican rhetoric.)

Paul the Conservative

Paul sometimes talks about “the government” not interfering with the use of drugs or the drinking of raw milk or the definition of marriage, usually as a shorthand reference to “the federal government.” Most of us speak like this at times. At other times, he uses the clearer expression “the federal government.” On marriage, by the way, Paul had this to say on the floor of the House, in explanation of his opposition to an amendment to the Constitution defining marriage:

If I were in Congress in 1996, I would have voted for the Defense of Marriage Act, which used Congress’s constitutional authority to define what official state documents other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a “same sex” marriage license issued in another state. This Congress, I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts’ jurisdiction. If I were a member of the Texas legislature, I would do all I could to oppose any attempt by rogue judges to impose a new definition of marriage on the people of my state.

What is the “Full Faith and Credit” clause? Article IV, Section 1 of the Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” So Paul was looking for a way to prevent “rogue judges,” in say, California or New York, defining marriage for the people of Texas. Sounds pretty conservative! (And since the Constitution gives Congress no power to regulate marriage, it is a state issue.)

On the question of drugs, while Paul sometimes urges Americans not to fight a war on drugs at all (the libertarian position), at other times he clearly states that he is campaigning for a position in the federal government, and his actions as president would not affect the states (the classic conservative position)—but you have to be listening closely or it will slip right by you. He expressed both positions in the May 6 debate among Republican candidates in South Carolina last year, after the moderator said to Paul: “Congressman Paul, you say that the federal government should stay out of people’s personal habits. You say marijuana, cocaine, even heroin, should be legal if states want to permit it. You feel the same about prostitution and gay marriage.  Question, sir: why should social conservatives in South Carolina vote for you for President?”

In the first part of his answer, Paul made a libertarian argument against all drug regulation by government, at all levels:

“[Social conservatives] will [support me] if they understand my defense of liberty is the defense of their right to practice their religion and say their prayers where they want and practice their life.” We have to “protect liberty across the board,” without “inconsistency.” “If not, you’re going to end up with government that’s going to tell us what we can eat, and drink, and whatever.” But liberty is combined in Paul’s mind with personal responsibility, not libertinism: “How many people here would use heroin if it was legal? I’ll bet nobody [here] would put their hand up. ‘Oh yeah, I need the government to take care of me. I don’t want to use heroin, so I need these laws.’”

Then, in a very brief way (he was under time pressure), Paul also hinted at but did not develop his core position concerning just about all political questions in the United States: let’s follow the Constitution. Responding to the words “federal government” in the question, he answered, “if I leave it to the states, it’s going to be up to the states.” At the end of this more recent interview (well worth watching), Paul is asked again about his position on drug laws and the war on drugs. He objects to the wording of the question, because it implies that he is campaigning to abolish all drug laws rather than just most federal drug laws. He points out that the “federal war on drugs” is an innovation in our history (although problem drugs are quite old), and if given time would surely have pointed out that the Constitution does not give the federal government any power to legislate on the topic—even if, at the same time, it says nothing to forbid the states doing so: “[My position is] not exactly as you cite it…We have not had a federal war on drugs [throughout] our entire history. But just to say it’s legalized is not the case. I take a Constitutional [position]…”

Will Ron Paul Force Legal Drugs, Gay Marriage, and Raw Milk on the States?

Here is the sticky part. I absolutely love Ron Paul, but I think even his biggest supporters admit that, as often happens with strong people, his strength is in some way also his weakness. Paul’s particular strength/weakness is an inability to be anything but totally sincere at all times. It’s why so many respect him (he is the un-politician), but it is also why he rushes in to give sincere answers to the toughest possible questions, where most speakers would find a simple way to duck, so as to avoid giving a negative sound-bite to their enemies. An example was his answer when asked if he would have taken the United States to war to stop the Holocaust. Of course, the U.S. was heavily involved in World War II for several years before major newspapers began to publish stories on the Holocaust, and initial reports in the early 1940s were not believed. We did not go to war to stop the Holocaust. The U.S. was already fighting against Hitler’s forces, and would have continued doing so without these reports. Perhaps shockingly, the Allies never tried to bomb the trains to the death camps. There is also an argument made by many conservatives that if the U.S. had stayed out of WWI, the rise of Hitler and thus WWII would have been very unlikely. But although we went to war, we didn’t even slow down the Holocaust. All that was surely in Paul’s mind. He could have answered, consistently with all his stated positions, that if Congress had decided to declare war to stop the Holocaust, he would have led the nation to war. This would surely be one of those instances (I think they are rather rare, and must be weighed very carefully indeed) where a war that is not strictly defensive is just, and if Paul were facing these actual circumstances, I find it inconceivable that he would not have done his best to try to stop it, including leading the country to war: through Constitutional means, of course. Or he could have said it was a hypothetical question, and that generally he believes only in defensive wars. But he gave his enemies an honest sound-bite to beat him with, based on a very abstract rule.

Similarly, Paul gives an honest answer about what he thinks on drugs and other issues, even if it hurts his campaign, and even though he is not campaigning to end all such laws. Based on Paul’s consistent vision of the Constitution over the decades, it is clear he would do absolutely nothing as President to stop a single state from regulating drugs, marriage, raw milk, or any such issue. President Paul would get rid of all raw milk regulation at the federal level, but if California then denied raw milk to its citizens with a state law, that would be a battle for the people of California to fight. President Paul would presumably encourage the raw milk drinkers in speeches, but he would not exert an ounce of actual power to “increase the freedom” of Californians on that front—it isn’t in the U.S. Constitution. Californians, and citizens of every other state, would have to decide for themselves how much or how little regulation they wanted at the state level. The same would go for marriage and drugs. President Paul would abolish or not enforce the unconstitutional federal regulation, but he would leave state laws alone—because the Constitution gives him no power to overturn or override them.

So why doesn’t he say so more clearly and more often, since it would help win over many conservative voters? He does, sometimes, by throwing in the word “federal.” But often Paul simply opens his sincere and honest mouth and says that “government” should not be involved in such things, and he clearly means at all levels. He is, in some ways, an old school conservative, as pointed out just above, but he is also, in some ways, a libertarian, in the sense of wanting to allow enormous freedom. Now, strictly speaking, his views on what the states should say about marriage and drugs are completely irrelevant to his campaign: as a strict Constitutionalist in the White House, Paul would obviously respect the choices of the different states, whatever he thought about them. He could have reminded us of this far more clearly, and more often. I think one of the reasons he doesn’t is his assumption that many Americans have read and understood the Constitution. Many have, but tens of millions haven’t, and they don’t understand his brief references to a “Constitutional position.” Much of what we learn about the Constitution in school is nonsense. I have conservative friends who understand all this. One wrote to me recently saying that if Paul were running for governor of his state, he wouldn’t vote for him, but that he would make a great (accidentally) conservative president. And he would make a great conservative president, but he is not helping his friends to help make that case.

A Plea to Ron Paul and His Campaign

If Paul or his campaign people are reading, this is a plea: explain the Constitutional limits, and say clearly “as President, I would not attempt to impose my personal views on the states, because the Constitution gives the federal government limited powers. Each state has its own constitution that the federal government cannot override. I am not campaigning to overturn a single state law, on drugs, or marriage, or raw milk, or anything else, only the unconstitutional federal laws about those things.” Say it a few times, in front of cameras. Put it in some ads. Some of us know Ron is saying it, in a kind of quick shorthand, as an afterthought because he thinks we all get it. Many of us don’t. It might reassure many conservatives. (Why not a brief statement on the campaign page, under “the issues,” for each of these topics?)

Back to the Blueprint: a Revolutionary Return

Since we have gotten so far from the original design, and since the Constitution is “the supreme [human] Law of the Land” (Article VI), two things follow: First, there is no possibility of “morality in government” at the federal level unless the government itself begins to follow “the supreme (human) Law” of the nation: how can government officials punish those who break the laws Congress passes, when those very laws break a higher law of the country? What kind of moral and legal example is that? And yet, do any of the other Republican candidates show any sign of really wanting to try to return to the Constitution, not just on a few pet issues, but as the supreme human law of the land that is truly to be followed? Certainly not. They are clearly willing to “swear to uphold” the Constitution. They will surely mention it in campaign letters—Rick Santorum promises in one to “restore sanity to our judicial system by appointing judges who won't re-write the Constitution every chance they get.” Then they will get on with business as usual—except for one or two favorite projects, perhaps. Their entire careers until now show this—and being naïve is not a conservative virtue. So how can they possibly set the moral example conservatives want to see? How can they urge us to see the proper relation between the government and any part of our lives when they wish to ignore the supreme law of the land on most major government issues?

Second, the most urgent need of the federal government is to return to legality, which means depriving the federal government of most of its current powers and ending most of its current domestic activities—in a measured way that does no harm to those who have built their lives around federal promises, such as Social Security. This is the approach Paul proposes. If there is a balance between government power and liberty, then clearly according to our own Constitution we have swung far indeed onto the side of government power at the federal level, and anyone wishing to restore the original balance will have to spend most of his time talking about and promoting liberty and the restriction of the powers of the federal government.

Imagine a politician who actually meant his oath to “preserve, protect and defend the Constitution of the United States.” How much would such an elected President have to dismantle of the existing federal government! That is Ron Paul’s vision, the vision of a man even his enemies admit is sincere, thoughtful, and one who really acts on his principles. And that is the true measure of the difference between him and all the other Republican candidates. Paul would be in a hurry to get back to that very short list in Article I, Section 8! No one else even talks about it seriously. That is one reason that at least some of us Paul supporters think of him as the only real conservative in the running.

Don’t Be a Slavish Literalist!

One objection needs to be considered: Paul’s call for a return to the Constitution could look to some like a slavishly literal interpretation of that document. First, the people who offer this criticism are often pretty vague about what a non-slavish interpretation should look like, and we should ask them what they mean. But avoiding that question for the moment, what would an example of rigid, slavishly literal interpretation be? Say if Ron Paul said that in the time of the Constitution, “interstate commerce” consisted of animal-drawn wagons and barges, or sailing ships, so therefore the laws regulating commerce using airplanes and trucks and the internet were unconstitutional. Now that would be a rigid adherence to the letter of the law. That would be the kind of thing such warnings legitimately urge us to avoid. Instead, Paul clearly sees that that clause of the Constitution grants power to the federal government (if it wishes to exercise it) to regulate all kinds of commerce between the states, including kinds that were unimaginable to the Founders. This objection doesn’t seem to have any force.

But the World is More Complicated Now!

A second objection: we live in a far more complicated world than in 1787 or 1831, therefore we must have a more centralized government. The federal government began to do what it does because these things were needed, and the states could not do them for themselves. First of all, this is just not true: none of the states was or is so small it could not deal with such issues. There is no technical reason the federal government could not stick to its short list of powers, dealing with them in new ways in our more complicated world but staying within the boundaries they establish. Second, the Constitution was not amended to allow the federal government to concern itself with education or drugs or social security or health. In our fundamental law, the short list of federal powers is still “on the books.” If we ignore it rather than amend it, we have in effect tossed out the rule of law, a very serious thing indeed. Third, conservatives still talk about subsidiarity, the old political principle that teaches that “a larger and greater body should not exercise functions which can be carried out efficiently by one smaller and lesser … a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.” The governing from one central spot of 310 million people is just impossible, as well as wrong, except through a great deal of decentralization that pushes the day-to-day questions of governance, and almost all of its details, down to a lower level. The states are still capable of dealing with these issues, despite the greater complexity of the world. In fact, many of these complex issues regulate themselves, through voluntary interaction of people, and in the marketplace, where sellers compete to offer buyers what they want, and try to avoid making or selling dangerous products that allow them to be sued or to go bankrupt. This is another old conservative insight.

He Can’t Do it Without Congress

Let us consider a final objection, a recent Jonah Goldberg argument against Paul. Goldberg warns that we shouldn’t trust Ron Paul’s “naïve promises” because he would need Congress to approve many of his plans, such as abolishing five federal government departments. Hmmm—like most promises by every Presidential candidate, ever? I guess we shouldn’t listen to Romney, or Bachmann, or Gingrich, or Perry, or any of them, because whatever they promise to try to do, after all, they can’t do it—unless Congress agrees. A bit obvious, that. (Has Jonah been warning us against the “naïve pro-life promises” of leading Republicans, like Reagan and Bush and Bush, for example, for the last few decades? Because that is the kind of thing this argument implies.) Of course, whoever is elected, members of Congress will quite possibly “change their minds” and go along with a great deal of what he asks for, because they will see it as the will of the people. That is one reason for legitimate campaign promises—they are an attempt to persuade the voters what direction the government needs to take, and the winning candidate can claim to speak for the people. (I guess we can call that “democracy.”) By running on his platform of a return to the Constitution, Paul is proposing to the voters that we—return to the Constitution. If they vote for him, then at least to some extent they agree. (But let’s not forget, in addition, what the President can constitutionally do without any authorization from Congress or the courts: undo prior presidential mischief.)

Should a Conservative Vote for a Conservative/Libertarian?

In his heart, is Paul actually a libertarian, and not a conservative? First, the word “libertarian” is as capable of different meanings as is “conservative.” One kind of libertarian (the kind attacked in a famous essay by Russell Kirk) believes in no morality at all, and therefore wants government out of the business of defining and punishing morality. Another kind believes in morality, but believes the government should have zero role in enforcing it. But for others, such as Hayek (who seemed to agree that he was some kind of “libertarian” without liking the label much, even though he calls James Madison one of his American political heroes), there is in fact a strictly limited role for government, and to some extent that role is connected with moral issues. Paul has made it abundantly clear in his life, especially with his devotion to the Constitution, that he is this latter kind of libertarian. Russell Kirk, in that same essay, contrasts libertarians with conservatives who, he says, are marked by a belief in “an enduring moral order, the Constitution of the United States, free enterprise, and old American ways of life,” which sounds like Ron Paul on the stump. In fact, Kirk says, if someone calling himself a libertarian believes in these things, “why, he is actually a conservative…” By Kirk’s definition, Paul seems to be more of a conservative than a libertarian.

But let us agree that in some ways Paul is a libertarian, going so far as to believe that ideally not even the states should regulate marriage or drug use, as he has openly said. I would argue that even if that is the case, the best strategic, practical decision traditional conservatives can make this year is to vote for Ron Paul. Why? First, even if he is this kind of libertarian, this will come out in his governing as a refusal to impose his ideas on the states, leaving conservatives free to attempt to persuade their fellow Americans at the state level on any of these issues. Paul’s whole constitutional philosophy assures us of this. Second, Paul has the only pro-life agenda that might be realistic in the short term: push the issue back to the states. As I discussed here (and there is another great article here), Paul has consistently called for Congress to exercise its power, granted in Article III, Section 2 of the Constitution, to exclude the Supreme Court from appellate jurisdiction on the issue, moving it right back to where it was in January 1973, with the states). Third, his whole life shows he respects the limits on the federal government imposed by the Constitution, and while that is a core conservative value, no other Republican comes close. Therefore, a vote in favor of Ron Paul would mean four years of relentless assault on unconstitutional big government—far more than Reagan actually waged. None of the other candidates can realistically promise this (certainly not Romney or Gingrich the Freddie Mac consultant or Santorum, big government champions for years). Paul’s cuts and abolition of departments would set a new mark for future presidents, and might just hold. Future conservatives might really start to care about the Constitution, and take Paul’s presidency as a new standard. And finally, no lasting damage would be done to conservative ideas: there appear to be more conservatives than libertarians in America, and there would probably continue to be after a Paul presidency. There don’t appear to be many Ron Pauls around anyway. Are conservatives really afraid that their people will start turning into libertarians?


Lots of libertarians will vote for Ron Paul, because decreasing the power of the federal government is a step in the direction of greater liberty. A number of liberals will vote for him because he actually means to end our “foreign [military] entanglements.” However, let’s remember that when Ron Paul states, “I am an advocate, a very strong advocate, of following very strictly the rule of law: the Constitution of the United States…the Constitution was written very precisely to restrain the power and force of government and to protect the liberties of each and every one of us,” he sounds like a Reaganite conservative. That is because Reagan sounded like Madison and Jefferson when they warned about the dangers of unchecked government power, and when they helped design a system with a small, limited central government with powers “few and defined.” These patriotic Americans, and many more, considered an unchecked federal government the worst danger to the liberties the Founders fought for in the American Revolution. Since most of what that government now does is far beyond what the Constitution authorizes, the first priority on the federal level of a conservative who believes what those luminaries wrote is to reduce the federal government to its proper functions: something Madison and Jefferson insisted was vital to preserving our liberty. Only a kind of peaceful revolution can get the Constitution back as the real blueprint of our government. The rhetoric (and real planning) of a conservative who really wants that has to sound like that of Ron Paul. None of the other candidates even comes close.

(To be continued. Next: a moral leader)