What is “Limited Government”?

What does it mean to have a limited government?

Now, let me note from the outset that one could write quite a bit (indeed, a book or two, I reckon) on this subject, so I hardly consider the following the definitive last word on the subject, but these are some thoughts that have been percolating in my head for a while that were brought to the fore as a result of a WSJ editorial yesterday and Doug Mataconis’ post on that subject (and the comment thread thereof).

At a minimum I think it is worth considering what “unlimited” government might mean, as well as what a purely majoritarian democracy would look like, and then to note specifically how our system is limited and in the ways in which the nature of that limitation is unclear (and therefore contested).

The bottom line, perhaps, is that all governments are limited in some capacity.  Any division of governing power is a limitation on that power.  A simple illustration:  if I am a single person deciding what to do for dinner, I am constrained only by my own will.  However, if I am part of a couple, negotiations must commence with my significant other.  Expand that to a family of five or to two or more couples and the limitations on action become obvious.  Yes, I understand that this isn’t an example of governing, but it illustrates that as actors who have claims to power are added to a deliberation, the more limited my specific part of that process becomes.

The only truly unlimited government would be the type of tyranny that Montesquieu warned about and that many of the framers of the US Constitution feared:  the type of government where all the powers to make laws, execute the laws, and pass judgment over those laws is vested in a single individual.  If a given person can decide at any given moment what the law is, how to apply it, and to whom it applies, despotism exists and the power to arbitrarily apply that power is unlimited.  Now, such extreme despotism is relatively rare in the modern era, although places like Robert Mugabe’s Zimbabwe come to mind.  Certainly, too, there has been a lengthy set of examples of authoritarian regimes of various stripes where high levels of power concentration existed, and therefore nearly unlimited and unconstrained government was in place.

Of course, when we start considering the issue of limitations on government once we starting talking about representative democracy, regardless of the example, we hit the realm of limited government and the question then becomes what form and scope such limitations take.

One of the ongoing claims about the US that is made, usually taking the form of the “republic, not a democracy” claim (for more on that see here, here, here, and here for example) is that we do not have a system wherein the majority gets whatever it wants (which is true—more on that in a minute).  However, it is rather important to note that really, by definition, there is no modern democratic system that is a pure majoritarian system for the simple reason that all democracies guarantee minority rights (e.g., speech, association, religion, press, etc.) and all democracies have constitutions and courts and the the like which constrain and limit what the government can do (the United States is not unique in this regard, even if the exact manifestations and applications of these issues vary from place to place).

The closest, in practice rather than theory, to majoritarian democracy would be the United Kingdom due to a series of issues which include the following: 1) it is a parliamentary system, 2) it effectively has a unicameral legislature,* 3) it has an electoral system that almost always produces a single majority party,** 4) it lacks a written constitution, 5) it has weak judicial review, and 6) it is a unitary system (i.e., not federal).

All of this means that the majority party controls the legislature (the House of Commons) and the executive (i.e., to chose the Prime Minister and the cabinet) and technically all laws passed are automatically constitutional (although there are some grounds, though quite limited, to challenge some laws).  Also, since most governing power is concentrated in parliament,*** a majority party therefore can have substantial, deep, and lasting policy effects.  However, even in such a system the majority does not get everything it wants (because, if anything, majorities form and fall around given issues, rather than being some permanent entity).

The US is clearly different than the UK case.  While we have the same basic electoral system, which helps produce our two large parties, we are quite different on all the other dimensions mentions:  we have separation of legislative and executive powers, we have strong bicameralism (wherein laws must pass both chambers in identical form), we have a written constitution with strong judicial review, and we have a federal system.  And when it comes to majorities and their will, the Senate by itself thwarts that issue in a host of ways.

As such before we start talking about what is in the Constitution, the division of power in our system should be clear:  division between federal and state (50 of them!) governments, division between Congress and president, division between House and Senate, and a great deal of power in the hands of the courts.  This is where we see the heart of the notion of limited government.  Our government can seldom act quickly, to say the least.  This is clearly a bit more complicated than, to get back to my previous example, several couples deciding where to go to dinner.

We have to understand this basic institutional environment before we start talking about limitations from the Constitution itself.  We have to understand and acknowledge that what we have here is a arena constructed within which to contend over the meaning of the documents.  When the Constitution limits Congress to only dealing with interstate commerce, it does not define what that means.  So, on the one hand, this is a clear limitation on government, but we really are not told what that limitation means.  Yes, we can try to discern what was in the mind of the Framers (ultimately a tricky, if not impossible, task) or we can acknowledge that the meaning of the phrase is one that has to be worked out within and between the House and Senate, and then between the Congress and the President, and then between the collective decisions of the Congress and the President (i.e., law passed then signed) and the courts (up and until, possibly, the Supreme Court).

As such, to answer Doug’s question from his post (as well as the WSJ‘s):  “What Can’t The Government Mandate?” the answer is:  the government cannot mandate something that cannot make it through the above gauntlet.  Practical politics as filtered through our political institutions is, ultimately, what determines what the government can, and cannot, mandate.  As such, we do not yet know, for certain, if the federal government can mandate the purchase of health insurance, as the gauntlet has not yet been completed.  The likelihood that, to get back to the WSJ column, Congress will be mandating health club memberships or coffee for employees, is rather slim; indeed, it is nonexistent.

Indeed, let’s consider the obvious illustration that proves point:  the PPACA and the individual mandate.  To pass the legislation it took decades of interest and politics to come to a very specific political circumstance (i.e., unified government combined with a large Democratic majority in the House and 60 votes in the Senate—which was almost derailed by the death of Ted Kennedy) and still the fate of the law is in the hands of the Supreme Court.  Regardless of outcomes, our system of constraints and its interaction with practical politics should be clear.

Back to the theoretical discussion:  yes, the constitution constrains and limits the US government, but it does so far more by the nature of the institutional design than it does by the words on the page.  Consider, as I noted in the comments of Doug’s post, the clear admonition in the First Amendment:  “Congress shall make no law…abridging freedom of speech.”  If that statement, on paper, was all that was needed to limit government, then one would, in fact, be allowed to yell “fire” in a crowded theater and to claim in commercials that drinking Sprite cured AIDS.  And yet, as a result of court decisions and legislation, there are things that we cannot say.  That doesn’t mean government isn’t limited, it just means that the nature of that limitation is ultimately about practical politics in the context of various institutions, rather than simply what any one of us wants the constitution to mean.  At a minimum, I find the simple assertion that we have a “limited government” to be problematic not because it is false, but because it is an incomplete formulation at best and ignores the fact that one cannot actually just appeal to the constitution to end the discussion.  Indeed, the appeal to the constitution is what starts the debate, rather than ending it.

—-

*Yes, there is a second chamber:  the House of Lords.  However, in terms of daily governance, the House of Commons is all that matters.  When it comes to basic legislation, the House of Lords has only delaying powers, and those are deployed infrequently.  As such, the party that controls the Commons controls lawmaking in the UK.

**At the moment there is actually a coalitional government made up of the Conservatives and the Liberal Democrats.  This is one of those “exceptions that proves the rule” cases, insofar as this is a rare situation.

***There has been some devolution in the last couple of decades, however.

FILED UNDER: Politics 101, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Moosebreath says:

    Excellent post, Steven.

  2. Unless I’m missing it, your answer to my question seems to be that the government can do whatever the majority wants.

    Sadly, this is probably the state of the law today. It is not, in my opinion at least, the recipe for a healthy or free society. It strikes me that the limitations on Congressional power in Article I either mean something, or they don’t. In what I would call a shocking dereliction of duty, the Supreme Court, starting in Wickard v. Filburn, decided that they don’t. And that’s the problem.

  3. @Doug Mataconis: Well, no. I am pointing out that it is a rather complex interaction amongst majorities, congress, the president and the courts. It is hardly the case that it is simple majority rule. Not hardly.

    Beyond that: yes, the limitations in Article I matter, but their meaning is not self-evident (which seems to be how you are treating them).

  4. Dave Schuler says:

    When we speak of “limited government” we don’t generally mean that the legislature and executive are limited by the laws of physics or arithmetic. Or politics, for that matter. What I believe is meant is a reference to Madison’s phrase “limited government of enumerated powers”, i.e. that the mechanism for the limitation of government is its enumerated powers. In the case of the U. S. federal government that enumeration is in Articles I, II, and III of the Constitution with later amendments.

    We don’t have a limited government of enumerated powers. We haven’t had one for the last 70 years. Government’s enumerated powers have been found inadequate to address some of the most pressing problems. The first such was slavery, the disagreement over which lead to the American Civil War.

    Whether we have a limited government of enumerated powers and whether we should have a limited government of enumerated powers are distinct questions and IMO the latter, at least, is worthy of serious discussion, along with the legitimate means by which those powers should be extended and what circumstances might require that those powers be extended outside those means.

    I don’t think we should just dismiss the idea, however. Rather than chopping Madison’s phrase into pieces and dismissing them seriatim, why not discuss the issue in context?

  5. @Steven L. Taylor:

    The meaning may not be entirely self-evident, but there is a meaning. There is right and wrong. And the fact that the Supreme Court says X doesn’t mean that it’s the right answer. Otherwise, we have to accept the moral legitimacy of case like Dred Scott, Plessy, and Korematsu.

  6. @Doug Mataconis:

    Otherwise, we have to accept the moral legitimacy of case like Dred Scott, Plessy, and Korematsu.

    I think you are arguing a contradiction, that we both have overly-democratic rule, and permanent decisions. No. Democratic rule would mean that those cases you name could all be overturned.

    It is not “moral legitimacy,” it is “rolling morality.”

  7. (Note that Iraq and Afghanistan provide a recent illustration of democracy, error, and rolling morality.)

  8. Rob in CT says:

    @Dave Schuler:

    On the one hand, I’m tempted to say we should hold a new Constitutional Convention and go for an update that clearly defines the limits to the Federal government’s power (in a way that works for us today).

    On the other hand, I think that would be such a clusterf*ck I despair at the thought.

  9. @Dave Schuler: I agree we have a government limited by enumerated powers–I am just pointing out that the meaning of those powers is contested within the context of politics and political institutions.

    @Doug Mataconis:

    The meaning may not be entirely self-evident, but there is a meaning

    But how else do you arrive at an agreement over meaning save in the context, again, of practical politics within the basic constraints of the political institutions we have?

    Unless there is a philosopher-king off in the wings who can proclaim the meaning there is no other choice.

    Take Plessy: yes, an abomination (and yet, it was during the era we supposedly had a more “limited government”). The unfortunate truth is that a combination of political sentiment and practical politics resulted in that ruling. I would note, too, that it was overturned the same way it came into being: ultimately via SCOTUS and then via various legislative and judicial actions mixed with practical politics (and it was quite a fight).

  10. @john personna:

    It took a Civil War and two Constitutional Amendments to overturn Dred Scott.

    Plessy was the law of the land until Brown came along nearly 60 years later.

    Korematsu — the decision which upheld the imprisonment of Japanese Americans during World War II — is still good law.

  11. @Doug Mataconis: Yes, but what’s your point? How do these examples help your case?

  12. @Steven L. Taylor:

    I was responding to John Personna’s argument that those decisions could be overturned. Yes the could be, eventually and sometimes at great cost. That doesn’t mean they should be given moral legitimacy before then, even if they have legal authority.

  13. @Doug Mataconis: Indeed. But I still wonder about the usefulness of the first two examples in particular to your position on limited government and the constitution, since Dred Scott and Plessy are 19th century cases.

    Indeed, what both of those cases would seem to indicate is that, in some ways, government has become more limited over time, rather than less so, yes? (If that is true, btw, that damages the notion the best way to have limited government is to hew to an originalist position regarding the constitution).

  14. @Steven L. Taylor:

    To pick just one example, I don’t think there is any reasonable interpretation of the history of the drafting of the Constitution that would support the contention that the line of cases starting with Wickard that expanded Congressional authority under the Commerce Clause was anywhere close to what that clause actually means.

    If people want a more activist government, fine. But as long as we have a government of limited powers the only legitimate way they should be able to obtain it is by Amendment via Article V, not by stretching the words of the Constitution beyond all reasonable meaning and essentially saying to Congress “Yea, you can’t do whatever you want, we don’t care.” That’s exactly what the Supreme Court did starting in 1942

  15. @Steven L. Taylor:

    No I think its rather obvious that the Federal Government in particular has become less limited, especially in the past 70 years.

  16. Moosebreath says:

    Doug,

    “That doesn’t mean they should be given moral legitimacy before then, even if they have legal authority.”

    How do you decide what is “moral legitimacy”? There’s a whole host of issues where people have such massive differences in their views that they believe the other side is inherently immoral (e.g., health care, where some believe a society which allows the sick to die in the streets for lack of health insurance is immoral, while others believe that not requiring people who made bad choices to suffer the full effects of them is immoral).

    Or are you appointing yourself as philosopher-king, and saying any laws which don’t meet Doug’s standards of morality should not be followed (which is what you appear to be saying on commerce clause issues).

  17. @Doug Mataconis:

    Seriously, dude? I think this is a contradiction alert again. First we have too responsive a democracy, and then we have lock-in. Which was it again? Which did you want again?

    You are too far in the weeds for me.

    (I might suspect that you want government to do what you like, and stick with it. That would of course be a little too egocentric for the rest of us.)

  18. @john personna:

    Try to pay attention. I was responding to your point about moral legitimacy. You seem willing to argue that decisions like Dred Scott were morally acceptable for their time. I am not.

  19. @Doug Mataconis:

    No I think its rather obvious that the Federal Government in particular has become less limited, especially in the past 70 years.

    In some things yes, in others perhaps not.

    Compare, for example, a host of personal liberty issues int he 19th v. 20th centuries, whether it be in regards to race, gender, or sexual orientation. Or, for that matter, the rights of non-believers vis-a-vis the ability of government entities to impose religion. In various areas of civil rights and liberties, the government is more constrained (also in areas like speech if we look back to the early 20th century).

    Limited government is more than just the commerce clause.

    Your position on the commerce clause, by the way, borders on the tautological: you claim it doesn’t mean X because it doesn’t mean X. The issue that I am getting at is how do we determine whether it means X or not, and the answer is (and always has been): practical politics within the constraints of the rules of the game (i.e., the basic design of government laid out in the constitution). Again: there is no philosopher king who say, definitely, what the words mean. Even Zombie James Madison could not fill that role.

  20. The truth is that any society with self-determination, regardless of the mechanism, will have a rolling center. We have that, Britain has that, Germany has that, and so on.

    The countries which don’t, be they China, Egypt, Russia, and so on, are all limited in self-determination. As Steven says up top, they are limited not by their charters but by their strong-men (or strong cliques).

    My basic test would be that if a people are surveyed and say they have self-determination, then they do. That regardless of whether they have a constitution or a responsive despot.

  21. @Doug Mataconis:

    I think you are missing my meaning. Or taking refuge in some personal judgement of “moral legitimacy.”

    If you are not egocentric, you have to recognize “moral legitimacy” as an external thing.

  22. @Steven L. Taylor:

    Vis a vis the Commerce Clause, my argument is that I don’t see any reasonable interpretation of history that would support the argument that what the Supreme Court has done since 1942 with regard to it (or, more properly what it has not done) is either an acceptable or correct interpretation of the meaning of the clause and its place in the Constitutional framework. Again, either these things mean something or they don’t. And, if the argument is that they mean whatever a contemporary generation wants them to then they don’t really mean anything and the Founder’s experiment to create a government of limited powers has failed.

    As to the rest of your comment, yes there are a number of ways in which personal liberty has flourished in the 20th century compared to the 19th century. Which is why I have no desire to return to that century. At the same time, though, it strikes me we just traded one devil for another.

  23. Self-determination is the devil 😉

    (HT Waterboy)

  24. @Doug Mataconis:

    my argument is that I don’t see any reasonable interpretation of history

    But what is the constitutional basis for stating that “interpretation[s] of history” are the proper standard? If that was the standard, then Dred Scott was rightly decided, for example.

    if the argument is that they mean whatever a contemporary generation wants them to then they don’t really mean anything and the Founder’s experiment to create a government of limited powers has failed.

    No (and for the reasons I elucidated above). What you are arguing is not that “the Founder’s experiment to create a government of limited powers has failed” but, rather, that your preferred interpretation for what that means is not being applied. This is rather different.

    And while I have a great deal of interest and respect for the Founders/Framers, it is rather clear that a) the original intent was actually a bit unclear from the get go, and b) we have been interpreting the constitution on the fly from the beginning.

    Back to “limited government”: the only way to limit government they way you want would have have required a far, far more detailed list in Article I, sec 8 (as well as far more definitive language).

    As an attorney who looks at laws all the time, you are certainly aware of the degree to which interpretation is part of the process and that ambiguous language always leads to varied interpretations of said language.

    Further, even if we want to appeal to original intent, the problem becomes a) there was not a single intent, but as many intents as their were Framers, and b) the idea that they knew exactly what all these words meant, and in exacting and specific detail for all time is simply fantastical, yes?

  25. @Steven L. Taylor:

    What other standard is there? If we don’t view the Constitution with an eye toward what it was meant to mean, then what or who gets to decide the question? It seems to me that the only real alternative is, as I said, the general whims of the contemporary majority? As I said, if that’s the case, then the Constitution really isn’t worth the paper its written on at this point.

    As an attorney who looks at laws all the time, you are certainly aware of the degree to which interpretation is part of the process and that ambiguous language always leads to varied interpretations of said language.

    Yes, and with face with potentially ambiguous language in a statute you look to what the legislature intended, or to some other guide in state law. Imposing ones owns idea of what the law should mean is not really a proper method of statutory construction.

    So like I said we have two alternatives. Either the words mean something objective (and yes its not always easy to figure that out and there will be disagreements) or it means what the majority wants it to. Is there another one I’m missing because if it’s the second one then we may as well just forget the idea that Constitution means anything anymore.

  26. Rick DeMent says:

    No I think its rather obvious that the Federal Government in particular has become less limited, especially in the past 70 years.

    That or the fact that just about anything you can imagine that falls in to the realm of economic activity, by necessity crosses state lines, or has an impact on activity that does. I mean no one put a gun to anyone head and said … please integrate your economic activities across state lines, or across national boundaries for that matter. I mean there is precious little economic activity that does not stretch across international boundaries any more let alone examples of activity that is entirely within the borders of a state. What little there is that truly can be said to stay within state boundaries effects other activities that does.

    It’s not that interpretation changed, it’s that the way people do business changed. States as a political entity have been irrelevant since the end of WWI.

  27. Peter says:

    @Doug Mataconis:
    Unless I’m missing it, your answer to my question seems to be that the government can do whatever the majority wants.

    You completely missed it.

  28. @Doug Mataconis:

    What other standard is there? If we don’t view the Constitution with an eye toward what it was meant to mean, then what or who gets to decide the question?

    Ultimately: it is what a consensus of what the congress, president, and courts can agree on and has always been thus (e.g., The Louisiana Purchase)

    It seems to me that the only real alternative is, as I said, the general whims of the contemporary majority?

    You know that this is not the case. I have detailed above some key ways this is not the case. Major policy changes are not put into place simply based on the whims on the contemporary majority.

    Yes, and with face with potentially ambiguous language in a statute you look to what the legislature intended, or to some other guide in state law. Imposing ones owns idea of what the law should mean is not really a proper method of statutory construction.

    And yet, sometimes it has to be done because it is impossible to always know what the intent was (indeed, the author of the bill may not really know what his/her intent was). Do you really think, for example, the the Philadelphia conventioneers had a unified and timeless definition of “commerce” in mind when they wrote that clause?

    When there is a dispute that is not easily resolvable, it strikes me that an appeal to the majority, as filtered through a number of filters (elections, various institutions, the constitution, etc.) is superior to the appeal to a minority position. How can it not be?

  29. @Steven L. Taylor:

    This is a theory of construction that places far too much faith in the good faith of the majority, and pays far too little attention to the rights of (political) minorities. Majoritarianism has never struck me as a theory that will, in the long run, protect individual rights.

  30. @Doug Mataconis: You keep ignoring the fact that I keep pointing out that we do not have a majoritarian system (I listed a number of ways this is true) and it is especially true when it comes to various specific protections (as is the case in all democratic settings). You are defaulting to, dare I say, a true straw man on that count.

    When I say things like “When there is a dispute that is not easily resolvable, it strikes me that an appeal to the majority, as filtered through a number of filters (elections, various institutions, the constitution, etc.) is superior to the appeal to a minority position. How can it not be?” it is insufficient to simply come back with “This is a theory of construction that places far too much faith in the good faith of the majority” because you have to deal wit the “as filtered through a number of filters.”

    I am not suggesting pure majority rule. No democratic theorist does. You keep appealing to the notion that pure majoritarianism is problematic, but I am not arguing pure majoritarianism. You are, therefore, not addressing my claims.

  31. Steven,

    In effect under the system you describe, we do because there is no objective law, only the subjective preferences of the people in the system.

  32. @Doug Mataconis: I still don’t think that you are addressing my claim.

    Beyond that: from whence comes this “objective law”? (which I presume to mean some set, unchanging standard).

  33. @Steven L. Taylor:

    You make reference in that last comment to the filters that these decisions pass through. Agreed. We have a House, a Senate, a President, and a Judiciary. If they’re all doing their job, then perhaps the system can work and there would be real checks on government power.

    But, what happens, when one of the filters doesn’t work?

    To get back to the Commerce Clause if only because it is the issue before the Supreme Court right now, starting in 1942 the Supreme Court essentially said that it would no longer review Congressional exercises of power under this clause beyond a cursory examination. The filter broke down because the Supreme Court majority decided that they no longer needed to do their job because they either couldn’t determine what the words of the Constitution meant, or they didn’t want to because they were afraid of public opinion.

    When one of the checks and balances is no longer checking and balancing, that strikes me as a pretty serious failure.

  34. @Doug Mataconis: It seems, though, that ultimately your argument is: you don’t like the outcome.

    In other words, while you claim that there is an objective standard, the bottom line seems to be simply your own preference.

  35. Ben Wolf says:

    @Doug Mataconis:

    The filter broke down because the Supreme Court majority decided that they no longer needed to do their job because they either couldn’t determine what the words of the Constitution meant, or they didn’t want to because they were afraid of public opinion.

    I don’t think this is a fair criticism. You attribute the Supreme Court’s decision to a) laziness b) stupidity or c) cowardice, and don’t consider they might have actually believed they were making the best possible decision. I understand your point and am sympathetic to it, but your argument is too heavily influenced by personal preference and assumption that decisions with which you disagree must be a result of negligence or bad faith.

    It is inevitable that what you and I consider bad choices will be made, particularly in a system as convoluted and (dare I say it) flawed as our own. Feedback loops, path dependencies, opportunity costs and contradictions have been accumulating in the system for centuries, making it very difficult to make decisions based solely on what we think the Founders would have wanted. In fact I might go so far as to say that in some cases compliance with original intent is no longer even possible.

  36. c.red says:

    Good post Professor Taylor. I think it describes the reality of our government well.

    I think I would add one more hurdle that you imply, but don’t specifically state, a policy must continually face; the acceptance of the American people (as I mentioned in the other thread.) By which I mean a significant number of people must be willing to believe that it is good enough to not actively change it. Otherwise new politicians are elected and the policy is repealed or at least changed.

    It is a small point, but important in my opinion, and does help explain why things change over time. Perhaps I am just arguing semantics though.

    In your PPACA example, this is the stated goal Republicans were trying to achieve in 2010(but I feel is unlikely as they do not have an alternative that will address the problem.) For an example that did succeed I would point to the mandatory 55mph speed limit that was attempted back in the eighties and nineties, but because of opposition in the west was eventually changed to a localized limit within specific guidelines.

  37. Peter says:

    @Ben Wolf:
    “In fact I might go so far as to say that in some cases compliance with original intent is no longer even possible.”

    I wood go as far as saying that compliance with original intent is not always desirable.

    For example, Going back to one Steven’s first comments, the definition of individual liberty and minority rights have been extended way beyond the original intent of the Framers.

  38. Peter says:

    @Peter:
    I wood sure I would.:o)

  39. c.red says:

    @Doug Mataconis:
    I would not normally address anyone directly on something like this, but you seem to be again skirting an issue that other commentators on this blog have been attempting to point out to you for a long time now.

    You are contending that there are hard and fast rules and morals that should govern behavior. Others are countering with “No, these things are relative and subject to agreement by people in society, and if they aren’t then who decides what the rules are?” You have attempted to hide behind the written word of the constitution, to which is responded “How can a deliberately vague two century old document be applied considering social and technological drift.” Your response seems to be a vague reference to the framers intent and shifting the discussion. Since both those sources are too vague to provide a useful reference, to an outside point of view that makes it look like you are setting up yourself as the authority of what is correct and good.

    What it comes to is you can accept that the world is grey or you can keep insisting it is black and white. The black and white viewpoint is not seen as righteous to the rest of the world, but is seen as an arbitrary and over simplified response to complex problems.

    (With that I will go back to minding my own business, mostly…)

  40. I think I’ve set forth my position fully in my responses to Steven, there may be more but I think that will have to wait for a follow up post tonight or tomorrow.

    In closing, all I will say is that your world of greys really just means that the Constitution means nothing. Sadly, that’s what our reality has become. We’re going to pay a price for that someday, I fear.

  41. Moosebreath says:

    c.red,

    Good post.

  42. Herb says:

    I find it pretty ironic that the folks who hope that the Supreme Court is going to kill Obamacare are also the same folks who cannot trust the Supreme Court to adjudicate properly. It’s almost as if the desire to undo PPACA is underwritten by a desire to undo Wickard.

    Beyond that, I have to ask, Doug: Why do you pine for an existence you have never known? Your whole life you’ve been living under Wickard. The society you know has been influenced by it in innumerable ways, big and small. Roll back Wickard and we’re not returning to a more authentic version of America. We’ll be rolling back to an America that wasn’t capable of dealing with the 1930s, much less the 2010s.

  43. Interesting thing about the House of Commons. It is the creation of King Edward I, who ruled from 1272-1307 (coronated 1274, but only because he took two years to lollygag his way back to England after his father, King Henry III, died.)

    Edward was a devoted tax raiser. Taxation under his rule was severe. Though an able ruler (indeed, historians rank him among the ablest of England’s monarchs), not even he could raise taxes from his subjects without eventually having to deal with a pushback.

    His solution was simple: admit commoners into Parliament and empower Parliament with the authority to raise revenues. Now, commoners had long been admitted to Parliamentary decisions, but not deliberations. That is, commoners had been admitted to give their assent to decisions Parliament took (but not a dissent, they were invited to rubber stamp Parliamentary decisions).

    What Edward did was summon two knights from each county and two commoner representatives from each borough to Parliament with authority to act as actual, authoritative representatives from their communities to give their assent. That meant that Edward, having empowered Parliament to raise revenue and having the commoner representatives act as endorsers for the populace, now had all the legal authority he needed to really tax the crap out of the country. In fact, he more than doubled the revenue measures used by his own father.

    Edward did have some missteps, including early in his reign when he demanded that the Church (not yet, of course, the Church of England) remand to his treasury one half of all clerical revenues. Reinforced by a papal bull that forbade such payments without the Pope’s prior consent, the clerics dug in and said no. Stalemate ensued until a subsequent bull permitted clerical taxation is cases of emergency.

    How interesting to our modern minds to learn that widespread opposition to Edward’s general taxation resulted from grave misgivings about Edward’s military adventures.

    Edwards’s parliamentary innovations became known as the Model Parliament, and still form the constitutional basis for parliament today.

  44. @Herb:

    Beyond that, I have to ask, Doug: Why do you pine for an existence you have never known? Your whole life you’ve been living under Wickard.

    For the same reason that I would have “pined” for an existence where Plessy never existed if I lived in 1945

  45. steve says:

    “No I think its rather obvious that the Federal Government in particular has become less limited, especially in the past 70 years.”

    I would disagree. Ask Steve about our history in Latin America where we had almost no constraints in meddling, or fighting, to achieve our ends. On the domestic front, the government controlled the price of oil, controlled banking, controlled transportation and (worst of all) controlled beer production. The government was used to prevent whole classes of people, indeed the majority of our people, from participating fully in social and workforce activities or schooling. Top marginal rates used to be 90%. The government heavily censored TV, movies and even comic books.

    Steve

  46. @Donald Sensing: I won’t argue with the basic history, although both parliament and the British monarchy have evolved a bit over the centuries…

  47. @Doug Mataconis:

    I think I’ve set forth my position fully in my responses to Steven, there may be more but I think that will have to wait for a follow up post tonight or tomorrow.

    In fairness, here’s what I have taken away regarding your position:

    1. You don’t like Wickard
    2. You think that there is an objective constitutional standard (but I honestly, and without snark, do not know what it is).
    3. You think historical interpretation based on original intent should be a guide (but without any indication as to how to deal with competing interpretations/ambiguities/more than one original intent (e.g., Jefferson v. Hamilton).
    4. You don’t like majority rule.

    This is why I ultimately conclude you are guided simply by your own preferences.

    BTW, I would note that Dred Scott was predicated on an historical and original intent argument.

  48. Dazedandconfused says:

    @Doug Mataconis:

    I

    n closing, all I will say is that your world of greys really just means that the Constitution means nothing. Sadly, that’s what our reality has become.

    Now, now. It’s not meaningless, we are just involved in a 200 year debate about what it means. I like to believe they know that ultimately anything they wrote would be meaningless without men of honor, intelligence, and common sense to work the government. Those qualities had to be assumed. They simply had to be.

  49. @Steven L. Taylor:

    It’s more like:

    1. Wickard was wrongly decided
    2 and 3. A jurisprudence based on the plain meaning of the constitution, guide by history, is preferable to one based on the whims of contemporary legal fads
    4. The Constitution was not designed to give the majority what it wants in all circumstances.

  50. Dazedandconfused says:

    Darn it. The above post needs to be “knew”, not “know”.

  51. @Dazedandconfused:

    When one branch of government essentially says it will not question the actions of the other regarding whether or not the limits of the Constitution have been exceeded, we don’t have a “debate,” we have abject surrender to majority whim

  52. mattb says:

    @Doug Mataconis:

    we do because there is no objective law, only the subjective preferences of the people in the system.

    This seems to be the real stumbling block here. When pushed Doug is retreating to an objectivist view which claims that there is a single objective or moral reality — hence arguing that the Dredd Scott decision was *always, already* immoral.

    From a historian or social science perspective, this makes little sense — there is a significant amount of evidence to suggest that the Dredd Scott decision was moral in that it reflected the moral will of the majority of the population and was couched within a certain moral argument (as was the institution of slavery).

    Doug, I just don’t see how your argument holds up under any scrutiny… Are we to take current anti-gay marriage laws as immoral?

    Also, I have to say that your entire argument about “majoritarian system” ignores the role of the court, which as has been pointed out on many occasions is the last refuge of oppressed minorities (and therefore one of the reasons why conservatives are so skeptical of that particular branch of the government).

  53. R. Dave says:

    @Doug Mataconis:

    Yes, and with face with potentially ambiguous language in a statute you look to what the legislature intended, or to some other guide in state law. Imposing ones owns idea of what the law should mean is not really a proper method of statutory construction.

    When statutory language includes a “reasonableness” standard, how should that standard be applied? Should it be based on what the average person in the year the statute was written would have considered reasonable or on what the average person in the year the statute is applied would consider reasonable? What about the words “cruel and unusual”? Many punishments that would today be considered utterly barbaric were neither unusual nor considered particularly cruel at the time the Constitution was written.

    With that in mind, I suggest the following: when drafting a statute (or a constitution) that is intended to be interpreted and applied over many years, good drafters will be very specific when they want to constrain future interpretations and more general when they want to permit or encourage future flexibility. Thus, when the Framers drafted the Constitution, they were deliberately general in part because they knew community standards would evolve, unforeseen issues would arise, etc. In short, “original intent” and flexible interpretation are not mutually exclusive because flexible interpretation was the original intent.

  54. @Doug Mataconis:

    2. and 3.: what does that mean, though? I used to take that position myself, but have come to the firm conclusion it is an empty formulation that often just runs, as I keep noting, to one’s personal preferences.

    4. I agree, but then I have noted that repeatedly.

  55. steve says:

    “A jurisprudence based on the plain meaning of the constitution, guide by history”

    History tells us the Founders disagreed. You tell us that they got it wrong in the past. I think the plain meaning is different than what you think it means. How do we then decide?

    Steve

  56. The Founders disagreed on many things, though generally not on principles, and certainly not the extent that any of them would have been at all happy with the malpractice that the Supreme Court and Congress have committed over the past 70 years or so

  57. Dazedandconfused says:

    @Doug Mataconis:

    In my observation, the questioning very much goes on, but I am not sure exactly what you are referring to.

    The problem with hazy grey areas is that they tend to be case-based. I think that was intentional. They knew they couldn’t idiot-proof government, but they could set limits. There are definitely areas of debate in them, but a great deal of it is accepted universally, and has sanctioned and enforced meaning today.

  58. @Doug Mataconis:

    The Founders disagreed on many things, though generally not on principles, and certainly not the extent that any of them would have been at all happy with the malpractice that the Supreme Court and Congress have committed over the past 70 years or so

    And you base this assessment on what?

    And, beyond that, the notion that individuals from over two centuries ago would be in a position to adequately evaluate the present is rather problematic, yes?

    Again: I likes me some Founders, but what is the logical basis for appealing to them as though they were prophets?

  59. I did not say they were prophets or that they had the answers to every conceivable factual situation that might occur. Clearly that’s not the case.

    However, they estabished a framework of government based on certain principles and those principles are universally applicable regardless of whether their being applied in 1812 or 2012. Substituting those principles with an entirely new philosophy of government that clearly views the checks and balances, and limits on majority rule, that the Constitution establishes as an inconvenience to be overcome or ignored strikes me as inappropriate because it becomes, in effect, a way to amend the Constitution without having to go through the steps required by Article V.

  60. @Doug Mataconis:

    Substituting those principles with an entirely new philosophy of government that clearly views the checks and balances, and limits on majority rule, that the Constitution establishes as an inconvenience to be overcome or ignored strikes me as inappropriate because it becomes, in effect, a way to amend the Constitution without having to go through the steps required by Article V.

    This is (and I know this is harsh) nonsensical. The system of checks and balances is there regardless of anything else: all laws must be passed in identical format in both chambers, then signed (or vetoed) by the president and are then subject to court review (as well as executive interpretation in their application). There is no circumventing of that. Your objections are outcome based. You don’t like the outcomes. You have every right not to like them, but you have made no coherent appeal to why they are wrong save that you don’t like them and some hand waving about the Framers and an objective standard you have yet to define.

    Also: anti-majoritarianism is baked into the system with the simple examples being the Senate, the electoral college, and the Supreme Court.

    Also: which principles?

  61. I would note, btw, that the PPACA (which is at the heart of this discussion) was only able to be passed as the result of a super-majority in the Senate (a mechanism that empowers the minority within an institution that already empowers the minority). The notion that passing the PPACA was some sort of flaunting of the system and an appeal to pure majoritarianism is simply factually incorrect.

  62. @Steven L. Taylor:

    Again, we’re back to the point where what you clearly seem to be saying is that as long as the majority approves it, it’s acceptable. That’s a perfectly acceptable theory of government but, again, it strikes me as rendering the Constitution to be little more than a structural framework that means next to nothing. What’s the point of saying there are limits on the powers of Congress if Congress can essentially decides for itself what those limits are?

    I can understand why people reject the idea of objective standards, but if one doesn’t believe there are any objective limits on the powers of government then you’re essentially saying that there are no limits. I’m fairly certain that’s not what the Constitution was supposed to mean, even though it does now.

    As for what those principles are, there have been countless books, papers, and whatnot written about that subject and it’s not exactly a topic that can easily be summarized in a blog post comment. But if we at least acknowledge that there are principles, then it strikes me we are in a far better world than the subjectivist mish-mash we’ve found ourselves in.

  63. @Doug Mataconis:

    I can understand why people reject the idea of objective standards, but if one doesn’t believe there are any objective limits on the powers of government then you’re essentially saying that there are no limits

    But what drives me a bit nuts about this is that you are asserting an objective standard without any idea as to what that means.

    As for what those principles are, there have been countless books, papers, and whatnot written about that subject and it’s not exactly a topic that can easily be summarized in a blog post comment. But if we at least acknowledge that there are principles, then it strikes me we are in a far better world than the subjectivist mish-mash we’ve found ourselves in.

    On the one hand, fair enough. On the other, it should be possible to at least give a taste of what you mean and where you are coming from. To be honest this sounds more like a lament for “the good old days” than it does the basis for constitutional interpretation.

  64. steve says:

    I would think this is a bit more nuanced. There is no objective standard as to what the Constitution means. If you think there is, please post a link to that interpretation. Lacking that, its meaning is determined by a combination of Congress (majority), the president (a potential majority or minority opinion) and the Supreme Court (potential majority or minority). If there is anything that was actually intended by the Constitution, I think this is how things were intended to work. Laws were to be made, based upon the Constitution, as interpreted by the three bodies in our government.

    Steve

  65. mattb says:

    @steve:

    There is no objective standard as to what the Constitution means.

    While this is a good rhetorical and thinking move, I think it pushes too far towards radical subjectivity. There are aspects of the constitution that are quite objectively clear. Arguable many of those aspects had to do with the direct operation of government or specific pressing issues of the day. There are other aspects o the constitution that necessarily become increasingly subjective as they are applied to real life situations (First Amendment being an excellent example),

    The problem is that people — depending on their disposition — tend to emphasize a particular side while ignoring the realities of the other.

  66. steve says:

    @mattb- Agreed. If I had expanded some, I would have said much the same thing. Still, we dont spend our time debating those points on which we agree. For those parts, there is no objective standard.

    Steve

  67. Peter says:

    @Doug Mataconis:
    “I can understand why people reject the idea of objective standards, but if one doesn’t believe there are any objective limits on the powers of government then you’re essentially saying that there are no limits”

    No, there are no limits. We the people who basically decide what gvt can or cannot do aren’t always the same people.

    Through time, gvt may be given less power on some topics:
    – gvt was NOT always obliged to provide an attorney to those who couldn’t afford one.
    . gvt may NO LONGER draft young men to send them into combat
    – gvt may NO LONGER impose on a woman that she surrender all her worldly possessions to her husband.
    etc

    and given more power on others
    – gvt may impose a minimum age and a driver’s license to use an automobile on public roads
    – gvt MUST deny the right to segregate customers following races in public facilities.
    etc …

    As a small exercise, pray tell me, Doug, what “objective standard” based on “original intent” could prevent the reinstatement of slavery in the US if all requirements to an amendment of the constitution were met. (They are all “majority rule” constraints of some type or another..)
    – gvt may

    Fundamentally, Doug, you just won’t acknowledge that there is no perfect system.

  68. @Steven L. Taylor:

    Oh, unquestionably, not least as you point out, that the House of Lords has become practically toothless. One of the evolutions over the centuries, and really corresponding with the 19th-century growth of the British Empire, is that Britain is ruled now much more by its bureaucracy than Parliament.

    But then, so are we. This is actually where I think the focus of the limited government debate should be: the massive rise of staffs in both the legislative and executive branches. These form the Lilliputs of our government.

    Presidents and Members come and go, but bureaucrats are forever. And they know it.

  69. Russell says:

    Great post and great comments. Sorry I’m late to the discussion so this will be longer than I like.

    The constitution should not be held as an immutable holy writ, which is what harkening back to original intent, especially attempting to treat that intent as a knowable objective standard, brings to mind. Doug objects (sorry no comment links–just too hard on my phone) by suggesting without attempting to adhere to originalism the law is whatever modern society or the majority desires and the constitution may as well be binned. This reasoning is flawed in several respects. First, the constitution frames and constrains the debate: the debate is about the interpretation of the document and the arguments for or against a rule must speak to the language in the Constitution. In a sense the framers are participating in our debate today and have their say through the Constitution. Second, the majority does not make the rules. Rules exist because they are desired by the majority and acceded to by the minority (via, at a minimum, a filibuster proof vote in the Senate). One could, I suppose, argue that this minority is a “majority of the minority” but then we need to get to unanimous consent for everything which is clearly unworkable as a form of government.

    Oddly, without the semi-subjective (re)interpretation of the constitution on a regular basis I wonder if it could have survived at all. That which cannot bend can only break. Yes there is an amendment process, but it affords either exceptionally limited flexibility or would result in a document that bears the same title but little resemblance to to original.

  70. Mikey says:

    Wow, I wish I had time to read through all these comments. After a quick scan, I find it really interesting to see the contrast in views between the practicing attorney and the PoliSci professor. I’m not sure if that indicates anything more “meta” about the respective professions, but it’s still kinda neat, and one of the reasons I read this blog so often.

  71. CB says:

    agreed with the above few posts. excellent discussion, doug and steven. i have nothing to add, except to say that these threads are what makes this blog invaluable.

  72. mannning says:

    This is a site that lists all of the federal agencies currently in the US government.

    http://www.lib.lsu.edu/gov/index.html

    It is the LSU Libraries Federal Agency Directory. At one time they posted a count of such agencies as 1,177, but in the latest version they ducked the question and referred the reader to the US Directory, based on the difficulty of defining government entities and ranking them properly. There is the possibility that this was a politically driven decision simply to make it difficult to determine the current extent of agencies without actually counting their names in the registry, which is tedious at best. So, I believe that the number is perhaps 10% higher now than in a few years ago when it was 1,177. Obamacare alone is supposed to add another hundred or two to this list.

    When we speak of limited government, I believe we should examine this enormous set of agencies, committees, bureaus, commissions and the like for: mission and regulation overlap; budgetary necessity; general need for their existence, and the possibility of combining and simplifying their actions, thus perhaps saving a lot of money.

    It was stated some time ago that to obtain approval of a new nuclear power plant, one has to submit plans and impact studies for approval to over 23 agencies, any one of which could block the effort. Since the heads of many of these agencies are politically appointed positions, the current political party in office has an enormous impact on approving who can do what, where and when in the nation. Then, too, unions in the federal government can have a significant impact on the ability of this huge collection of bureaucrats to perform their jobs efficiently, whether needed or not.