A Non-Lawyer Looks at the Living/Dead Constitution

I promised myself after I got mired down in a low-carb forum kerfuffle years ago (yes, people can get quite passionate about food and diets: I was more moderate in my approach to the diet, and I was regarded as a heretic by the Atkins fundamentalists) that I wouldn't let myself do the same in another context, like my blog or Facebook; it isn't that I dislike the give and take of debate (after all, I am a former academic and haven't ruled out a return) but the time-consuming nature and the incivility of people, particularly those with more orthodox views on a subject. To give a minor example, when you deal with the climate change issue,  I have seen rants against the integrity or intelligence of anyone whom dares to voice skepticism. Although I can be critical of politicians, including the President, and occasionally mock them, I'm actually more frustrated or exasperated with people whom don't seem to learn from their mistakes--for example, Obama is still pushing his "investments" in education, green energy, and infrastructure, even years into his Presidency; there's a lot of evidence that Keynesian policy is an utter failure. Just take, as simple examples, the post-WWII recovery, after spending a huge amount of the GDP on the war effort, and the stagflation of the late 70's (at the risk of oversimplification, the co-existence of high unemployment and high inflation). I know what the reaction would be of Krugman and other Keynesian economists: the problem was that Obama didn't spend enough--it's not a refutation of Keynesian economics, because Obama and the  Dems didn't spend enough by a matter of multiples. I'm absolutely convinced otherwise. I'll save that discussion for another day; for those looking for some relevant critiques in the interim, I recommend the writings of Robert Barro and Bob Murphy as a starting point.

In yesterday's post I included an abridged thread that referenced the same Reason video I independently also embedded elsewhere (I subscribe to Reason's channel on Youtube); this one involved ATF (the federal bureaucracy centered on alcohol, tobacco and firearms) which busted an operation smuggling low-excise-tax Virginia-bought cigarettes into a high excise tax state. Now it's clear from context that the cigarettes were being sold on the black market arbitraging the differences in excise taxes; many sales taxes are actually sales or use taxes, which means if you bought the items in another state for use in your home state, you still have to pay tax, at minimum any positive difference between states (I haven't looked at any relevant reciprocity agreements). It's not obvious why the feds are enforcing state tax policies. True, they were transporting cigarettes across state lines, which theoretically comes under interstate commerce, but cigarettes are legal products, including goods sourced from nearby states.

This set the context for the Facebook thread. The LPC blogger asked why is ATF involved? He thought the Constitution is supposed to promote a free market among the states. One respondent essentially argued that the Constitution permitted regulation and really didn't flesh out explicitly what they meant by regulations and/or any relevant limits to that regulatory authority, and so the legislature (and judiciary) are free to impose a regulation not explicitly ruled out in the Constitution (assuming it's rational). He then added the following snippet which bothered me but I was focused in discussing two badly decided SCOTUS decisions that basically expanded federal micromanagement of the economy:

The Founders intent is irrelevant. The Constitution was meant to be changed over time and it has changed... And even if it meant something different in 1776 that is irrelevant. The Constitution was meant to be and is a "living document". It can change and has been changed by design.

You might think the "living document" THEORY was a commonly-accepted "fact", and a fairly new one promoted (surprise, surprise) by activist SCOTUS jurists:

"There is absolutely no doubt that when the Eighth Amendment was adopted — nobody, nobody, not a single person, thought" it applied to the death penalty, Scalia said [in a 2012 address at Princeton]. "Nonetheless, my four colleagues thought that somehow it was within their power to say that's what the cruel and unusual punishment clause means today, even though it never meant that. … That is what the living Constitution produces."

The notion of a living Constitution has risen over the last 30 years and has percolated throughout society, with Scalia and Justice Clarence Thomas the only originalists on the Supreme Court, Scalia said.

"I have classes of little kids who come to the court, and they recite very proudly what they've been taught, 'The Constitution is a living document.' It isn't a living document! It's dead. Dead, dead, dead!" Scalia said, drawing laughs from the crowd. "No, I don't say that. ... I call it the enduring Constitution. That's what I tell them."

I am very much of an originalist, what I regard as the common sense interpretation of the Constitution. A "living" Constitution is merely a rhetorical smokescreen where jurists are able to interpret language liberally from a promotion of their own presumptuous parochial viewpoint. Being pro-life, I oppose the death sentence, but it is clear that the death sentence was in practice in colonial America, and whereas there is some ambiguity to the Eighth Amendment's boilerplate "cruel and unusual", it seems that 'cruel' would refer to the manner of carrying out a punishment, e.g., torturing a prisoner before executing him, and 'unusual' might be making a minor crime, which had been previously punished by, say, a short stay in jail, a capital offense. But the point is that whereas the nature of crimes may change, we can't argue that that no crimes today should be considered capital offenses because "times have changed". It would seem methods and offenses relevant during the early years of the republic would be part of the baseline. For example, I have little doubt that early Americans would have considered the events of 9/11 capital offenses.

Now going to the concept of interstate commerce, as I explained in Facebook thread, it is absolutely clear that the states were primary regulators of commerce. We know the ideas of Adam Smith and the free market were contemporaneous, we know that before the Constitution, that states had established some barriers to trading among themselves, favoring their native economy. According to Craig and Sailors from a 1985 White House document:

The debilitating effects of protectionism on the States’ economies convinced the framers of the U.S. Constitution to forbid individual States from levying tariffs.. ,.The constitutional ban on State tariffs was crucial to the development of the U.S. economy not only because it established a free-trade area among the 13 original States, but also because it ensured that the free-trade area would expand automatically as new States joined the Union.

They go on to argue:

Barriers to trade with other states are ostensibly prohibited by the Commerce Clause of the U.S. Constitution. This clause essentially mandates that no state shall take any action that inhibits trade with any other state. While the clause is clear on the surface, its interpretation has allowed a large number of trade barriers to persist...Under current U.S. trade policy, these nontariff barriers are the primary form of trade restriction. There are two primary types of interstate trade barriers: export taxes and import restrictions. Export taxes are levied on goods and services that are consumed mainly by people who reside outside the state that levies the tax. Import restrictions take two principal forms: taxes and administrative barriers...we have cataloged trade barriers in many major areas of the economy,including agriculture, professional labor, banking, insurance, and state governmental purchases. 

The Constitution does not intend for federal regulation of all commerce, or commerce within states; in fact, the Constitution enumerated federal powers and specifically addressed the concept of federalism  in the Tenth Amendment. Unlike the states, the federal government was excluded from taxing state residents directly (except for a brief period around the Civil War), which is why the feds had to pass the 16th Amendment (establishing the income tax). It was only when national revenues exploded via the income tax, that the feds had a revenue base to radically expand government services, including micromanagement of the economy. I  referred in my thread to 2 particular SCOTUS cases which were particularly important in expanding federal authority: Carolene Products and Filburn.

My adversary was dismissive of my singling out those two precedents as just my opinion, but facts are stubborn things. In Carolene, the feds had imposed a moratorium on selling canned milk products, legally sold in one or more states, across state lines; this prevented target state residents from the opportunity to purchase the product--anti-competitive behavior on its face. In Filburn, an Ohio farmer was prosecuted for violating a federal grain quota. I mean, on its face, the very fact of a quota is a violation of economic freedom on its face--but even more telling was the fact that a farmer's consumption of his own product is not even a business transaction, never mind a transaction across states. (The judicial sophists effectively argued that all business transactions were effectively interstate transactions, and the farmer's consumption was an implicit transaction)

So it is manifestly clear that interstate commerce authority was intended to promote the free market, allow businesses to operate efficiently across states, and eliminate non-tariff barriers across states (e.g., not allowing out-of-state companies to compete for a state contract). Instead, the Commerce Clause has been used in a perverse way to federalize economic regulation.  I, for one, am sick and tired of pervasive State creep, where individual rights are considered the exception, not the rule, against Statist hegemony.