Monday, September 5, 2011

The Politics of Wishful Thinking

Teacher, don’t ya fill me up with your rules,
‘Cause everybody knows that
Smoking ain’t allowed in school.
—Motley Crue/Brownsville Station, Smoking in the Boys’ Room
I’d probably be a much happier person if I just quit reading Paul Krugman.  I know I’d live longer.

In a column last week, Krugman accuses congressional Republicans, in particular House majority leader Eric Cantor, of abandoning all sense of fair play and decency in seeking to have federal aid for hurricane Irene victims be financed through offsetting cuts in other spending.  In so doing, Krugman charges—twice in five paragraphs—Cantor with “threatening to take Irene’s victims hostage” for political gain.  He goes on to complain that House conservatives are ignoring the legislative process in favor of achieving their policy goals by unilateral dictation:

Not long ago, a political party seeking to change U.S. policy would try to achieve that goal by building popular support for its ideas, then implementing those ideas through legislation.  That, after all, is how our political system was designed to work.

But today’s GOP has decided to bypass all that and go for a quicker route.  Never mind getting enough votes to pass legislation; it gets what it wants by threatening to hurt America if its demands aren’t met.

Um, Mr. Krugman, have you seen the federal bench?  Or the President?

Never mind that the debt/spending-for-offset-cut deal is one that was already made a month ago.  Never mind that Cantor and House conservatives are doing exactly what their constituents elected them as their representatives to do.  Never mind that what Cantor is doing is the legislative process, and if he can’t get the votes it doesn’t matter what threats he makes or who he attempts to hold hostage.  Anything that gets between Krugman and limitless federal spending is anathema.

Krugman goes on to argue that disaster relief is precisely the situation that is tailor-made for “temporary” deficit spending.  The U.S., he says, is having “no trouble borrowing to pay for current expenses”—query how borrowing actually pays for anything—and that longer term deficit issues can be corrected by “borrowing now and repaying gradually via a combination of lower spending and higher taxes.”  Of course, the problem is in Krugman’s world deficit spending isn’t temporary, and neither the longer term lower spending to repay current debt nor the reduction in ongoing borrowing ever comes. 

But Krugman’s argument highlights a larger point.  Conservatives believe that fair play and decency begin by recognizing we all are governed by the same rulebook, i.e., the Constitution.  It’s not a question of what the government should do, but what it’s permitted to do.  For the Left, the issue is reversed, and is really one of pursuing their subjective perception of decency, rules be damned.  While I sympathize with our friends in the Northeast, the fact is the Constitution only gave Congress and the federal government certain limited powers, and giving away billions in disaster relief isn’t among them.

We’ve been over this before—and yes, I’m aware of the Supreme Court’s history on this issue in the context of disaster aid—but by any fair and unpoliticized reading of the Constitution this isn’t a close call.  Article I, Section 8 lists the specific powers Congress has (plus the ability to enact such legislation as may be necessary and proper to exercise those powers):

·         To borrow money, coin money, and punish counterfeiters;

·         To regulate commerce with foreign nations and among the States;

·         To establish uniform rules on immigration and bankruptcy;

·         To establish a Post Office and post roads;

·         To provide for patents and trademarks;

·         To establish lower courts of law;

·         To define and punish piracy and felonies on the high seas;

·         To declare war;

·         To provide and regulate the armed forces, and to call forth and train militia; and

·         To legislate for the District of Columbia.

That’s it.  Under the Ninth and Tenth Amendments, anything not listed above is reserved to the States or to the People; in other words, if it ain’t spelled out, Congress doesn’t have the authority.  No matter how right it is, or how badly you want it.

The Framers were clear on what they meant by this.  Again, as James Madison wrote in Federalist Paper No. 45:

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.

Those “few and defined” powers delegated to the federal government were to be focused on external matters such as war and dealing with foreign governments.  It was left to the "numerous and indefinite" powers reserved to the States to deal with people’s lives, property, and prosperity.

As my Contracts professor used to say, “Wars happen.  Insurance is available.”

Don't come to me with the "general welfare" clause in the preamble.  Both Madison and Thomas Jefferson—men in a much better position to know what the Constitution meant than anyone—rejected the idea that it trumps the Article I limitations.  Madison wrote in objecting to a federal aid package, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”  Jefferson wrote, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

If the “general welfare” clause is not limited by the powers specifically enumerated in Article I, Section 8, then that enumeration and the reservations in the Ninth and Tenth Amendments become meaningless.  Congress may do anything for which it can assemble a majority to agree it is in the general national interest.  And therein is the danger in Krugman’s position.  Rather than being moored to the objective rules set forth by the Constitution, Congress’ only limitation is a majority’s subjective view of what seems like a good idea at the time. 

We can all agree that Irene has been a major calamity for those in its path, and helping them clean up and rebuild is a nice and even decent thing to do.  This allows Krugman to claim the moral high ground and accuse those who oppose federal aid spending of callousness and political thuggery.  But basing government on a subjective sense of right and wrong as opposed to the limitations of the rule of law leaves it unpredictable, and subject to the very tyranny of factions against which Madison, Jay, and Hamilton warned.  What if a majority in Congress concludes that it is in the interest of the country’s general welfare to, say, remove Jews from positions in the media, or from commerce?  

That'd be 1933 Germany for $100, Alex. 

Fair play and decency, with no grounding in the rule of law, are fickle friends indeed. 

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