Sunday, January 8, 2012

Republican Debate a Big Government Stew with Small Government Seasoning

Tonight's Republican debate was a big government stew with small government seasoning. Ron Paul, who remains the only Republican candidate to raise the possibility of shrinking government, was the seasoning.   Stew-meat-and-potato candidates Romney, Gingrich, Santorum, and Huntsman talked  about the importance of the private sector and job creation, but they had nix to say about how to cut government. Gingrich said he favors less government; nevertheless, he offered ideas about how an ever-bigger government can spend on infrastructure. He, like rest of the beef, potatoes, and onions of the big-government Republican stew, had no specific plans to make government smaller; Gingrich and Romney merely say they like the private sector. Big government Progressives of the past like George W. Bush, George H. Bush, and Richard M. Nixon said the same kinds of things and did nix to shrink government. We can expect the same from tonight's stew meat.

Ron Paul may have been the small government seasoning,  but I found him not seasoning enough.  He made a number of good points, such as his mentioning that none of the other candidates had a any ideas on how to shrink government. But he erred in saying that the Fourth Amendment prohibits states from banning contraceptives. The decision that claimed this, Griswold v. Connecticut was the pivotal case of federal judicial imperialism that led to Roe v. Wade (the significance of this question escaped Mitt Romney, who seemed to not have heard of Griswold).

Paul's position is wrong if he claims to be the constitutionalist candidate. The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In deciding Griswold, the Supreme Court claimed that there are penumbras to the Constitution. But that claim is a flat contradiction of the Tenth Amendment.  The Tenth Amendment precludes any concept of penumbras. It says that powers need to be delegated. The claim that delegation can be through non-delegation, i.e., through penumbras or shadows, is self-contradictory.    Hence, Paul advocates expansion of federal power.  This is understandable when considering that many libertarians apply a state minimization approach--if something reduces government then they are for it.  Griswold reduced government when defined as the sum of state and federal government, but it sledge hammered states' rights.  In the long run states' rights reduce government because the states can compete.  By instituting federal control, the federal government imposes ever more fascistic control.

Equally unconvincing is Paul's apparent claim that the Commerce Clause permits the federal government to require that states sell contraceptives because banning them would interfere with interstate commerce.  That would imply that the federal government has the power to require that the states do anything it wants, since anything can be imported across states.  A national building code, for instance, could be viewed as a matter of interstate commerce. In fact, that is precisely how the Democrats overturned judicial resistance to the National Labor Relations Act. 

Paul claims to favor the Constitution, and Griswold is very much in the anti-constitutionalist, "living constitution" tradition.  If the Fourth Amendment is extended to "penumbras" and then foisted on the states through another series of illegitimate decisions starting with Gitlow v. New York, then pretty much anything goes as far as reinterpreting states' rights and the Constitution out of existence.

Rather than Paul's government minimization approach, federal government minimization is closer to the Constitution. Take the First Amendment, which says that "Congress shall make no law respecting an establishment of religion."  This could not have meant that the states are forbidden from establishing a religion because all of them had established religions at the time the First Amendment was written. States have the right to establish a religion, although I don't favor their doing so.

My chief criticism of Paul, though, is that he should do more to state his case. The Republicans' debates are staged by media lackeys of the same special interests who gain most at public expense from the Federal Reserve Bank: Wall Street, big government, banks and big business.  As a result, the Republican debates are exercises in pointlessness. Paul was right to point this out, and thankfully  there is a Ron Paul to do so. At the point where he brought up monetary policy and the Fed there was a palpable freeze in the audience.  Discussion of the Fed and monetary policy are not permissible ingredients in big government stew.  For that reason,  Paul needs to do more to bring the debate about the Fed to the fore. No institution has been more destructive of the nation's welfare.  It takes guts to say things on national television that the debate planners don't want a candidate to mention. Paul is three quarters of the way there. But he needs to be more aggressive.The seasoning needs to be stronger.


Anonymous said...

"States have the right to establish a religion, although I don't favor their doing so."

Which, by implication, means that any State can establish Sharia law.

jseverson said...

"But he erred in saying that the Fourth Amendment prohibits states from banning contraceptives. "

That wasn't what I took away from that although his answer wasn't quite clear to me. I don't think Ron Paul directly addressed the question on whether states could prohibit the sale of contraceptives.

He stated that the interstate commerce clause was written to not impede commerce between the states but to facilitate it. And, if a state hasn't banned the sale, then other states are free to export their products to that state. Based on that, I'm pretty sure he feels that it is the right of the states to ban the sale of contraceptives if the people of that state decide to do so.

In 2008, he introduced a Federal Medical Marijuana bill that would have required the government to respect the state's laws on medical marijuana. Given that, I think that further shows that his stance is that the states have the right to make decisions on banning or allowing products.

When he was addressing the 4th Amendment at the beginning of his answer, I don't think he was referring to whether a state has a right to ban a product or not. I didn't catch the full answer from Romney so I don't if he was addressing a comment made by Romney or if he was just re-enforcing the right to privacy that was mentioned as part of the original question to Romney.

Mitchell Langbert said...

If the other state is free to export contraceptives, how can the first state ban contraceptives?

Mitchell Langbert said...

Sharia Law? Yeah, any state can so establish it. In fact, until the 1840s Massachusetts towns had established Unitarianism as the official religion. Henry David Thoreau refused to pay a tax to support the established Unitarian Church in Concord, and he was imprisoned. Then he wrote "Civil Disobedience." Now, what is different between establishing a Christian Church and establishing an Islamic Sharia Law regime? Nothing. I don't see why a state couldn't do that. It's certainly not prohibited in the Constitution. It's probably more likely that a state would establish Zen Buddhism, though.

jseverson said...

The other state is free to export contraceptives to any other state which doesn't ban them. The citizens of each state can make that decision. And, if an individual objects, he/she can vote with their feet.

There is a good real-world example of each state treating a product differently. Although it isn't a banned product, as of 2005 nearly half of all states make it illegal to ship wine from out of state to a consumer's home. Six states make doing so a felony.

Since prohibition ended, each state has been allowed to regulate alcohol as their constituents see fit.

But, really, the topic about states banning contraceptives being brought up during the debate last night is a bit absurd. The only individual in the national spotlight who is discussing this, along with banning porn, gay marriage, and other things, is Rick Santorum.

Mitchell Langbert said...

My friend actually brought a law suit about the wine issue which got some publicity, but that was not the issue here. The question concerned banning contraceptives, not regulating interstate commerce. Paul brought up the Commerce Clause, which is not especially relevant to the question of banning contraceptives unless he was saying that it requires that states engage in interstate commerce, including contraceptives.

The medical marijuana thing is consistent with a government minimization approach. If states' rights minimize government, then support them. If federal centralization minimizes government then support it. The trouble is that approach can't work legally.

The contraceptives issue was in Griswold v. Connecticut. The Supreme Court said that Connecticut did not have the right to ban contraceptives based on "penumbras to the constitution."
It makes sense to discuss contraceptives because until 45 years ago (Griswold was in the 60s) some states DID ban contraceptives and the Supreme Court said they couldn't. That led to Roe v. Wade a few years later. It is also part of a long term centralization of power starting with the Dred Scott decision.

Although contraceptives are an unimportant question now, historically the question was pivotal. Santorum gave, in my opinion, a better answer. The "penumbras to the constitution" argument is part of the "living constitution" theory. The fact is that until the 1930s the living constitution was used to minimize government, just as Paul wants it to do. Then, the Roosevelt administration turned it around and said if the Contract Clause is to apply to the states, then why not the Interstate Commerce Clause?

The original Dred Scott decision was a mistake. The original culprit was Taney, who was appoint by Andrew Jacksonk, who also stopped nullification.