In your view, outside of the provisions of Article 1, Section 10, Articles 4, the Bill of Rights as incorporated by the 14th Amendment, and the 13th, 14th, 15th, 19th, 24th, and 26th Amendments, is there any limitation on what the entire governmental structure of this country can do? And if your answer is yes, then have you been paying attention?In other words, nobody has ever maintained that our country has a system in which the power of government is limited by anything other than specific individual rights which are phrased as direct prohibitions against government action. Nobody. Federal power may be limited and enumerated, yes, but state power is plenary and includes every power not forbidden by the Constitution. States can require you to eat your broccoli, unless you can object to it under the 14th Amendment. The only things no part of our government may do are those things forbidden by the provisions I mention above. Article 1, Section 10 placed certain limitations (like no ex post facto laws) on state governments. Many of those things are also forbidden to Congress in Section 9, and are therefore simply off limits. Article 4 says that states mayn't deny citizens of other states the privileges and immunities of their own citizens, or ignore the judicial acts, records and proceedings of other states. The 13th Amendment prevents any part of government from having slavery. The 15th, 19th, 24th, and 26th Amendments created distinctions on the basis of which the right to vote cannot be denied, by anyone. And the 14th Amendment, together with the Bill of Rights, means that no part of the government may abridge free exercise of religion, free speech, freedom of assembly, the press, or petition, nor establish religion; they may not (as of 2009) abridge the right to keep and bear arms (unduly), or quarter soldiers in your house in peace-time, or search and seize you unreasonably, or take life, liberty, or property without due process of law, or try you without a jury, or enact cruel and unusual punishments. And states at least, and probably also the federal government for some reason, cannot deny you the equal protection of the laws.
These are the only restrictions on what our government can do. Is there a particular philosophical reason, as of 2010 and not simply because it's the way we do it, for caring that some amount of the remaining power, which is not limited by any rule of enumeration, be given to the states and denied the federal government? Most of the time when people have made a fuss about caring about that, it's been for the purpose of keeping black people down. Other than that, do we still have a particularly good reason to mind exactly how much of the power of the government of the United States is in the federal part of it?
I'm afraid that I'm going to pose a few questions of my own rather than answer your own. Rather than asking if there are any limitations to the powers of the government, it might be more useful to ask if the gap between what the government can do and what it will do has been bridged. For example, any number of president could have been impeached for going to war without Congress first declaring war, but it never happened. For another, has the government become able to enforce all of the laws that they could potentially pass. While they could pass legislation making you eat your broccoli, could they actually force every member of every household to do so? Theoretical power has its place, but I think that actual power is of much more importance.
ReplyDeleteThey could enforce it if they really wanted to, but it would involve really truly destroying any notion of privacy in the home. And I'm also not really talking about intra-governmental structural issues, e.g. who has the power to declare war. Somewhere in the government(s) of the United States lies the power to make war. And the conservative critics of the individual mandate's constitutionality aren't really worried about whether the government will force us to eat broccoli, just whether it can. But of course it can, if the proper part of the government is the one to decide to do it, with the only possible restriction being the 14th Amendment.
ReplyDeleteIt is also true that the structural divisions of power, especially the separation of powers in the federal government where, usually, you need three different power centers to agree on something and a fourth not to decide to overturn it in order for anything at all to get done, are a restriction on practical power, anyway: the government can't do things that don't have some sort of support that manifests itself in the democratic process, somehow.