Charlie Leonard: Inalienable Rights
June 13, 2012
“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow.”
Those words were written by James Madison in 1788 in The Federalist, a series of essays intended to promote the ratification of the U.S. Constitution, and were intended to assure a skeptical nation, fresh from its revolutionary separation from England, that the proposed Constitution would strictly limit the powers of a new federal government.
Having unburdened themselves of the oppressive laws and rules of a distant imperial ruler, American colonists did not eagerly embrace the concept of a new federal government. In fact, the Constitution was approved only narrowly by the colonies – but only after strong assurances in The Federalist and elsewhere that individual rights would be called out for special protection and the powers of the new federal government would be strictly limited.
In total, the Constitution gave Congress fewer than 20 enumerated powers and reserved all other matters to the states and to the people. Almost immediately following ratification, the new Congress also approved 10 additional amendments, which we now call the Bill of Rights, which explicitly defined our civil liberties and freedoms.
Yet notwithstanding the fact that the world has become a much more complicated place in the past 225 years, can you imagine our forefathers’ surprise – and outrage – at the fact we have so many laws, rules and regulations today that no one can even accurately total them? Seriously, look it up. Our government says it does not have an accurate number.
What we do know is that federal laws today occupy more than 25,000 pages. The federal tax code is more than 17,000 pages. The Federal Register of rules and regulations is more than 75,000 pages. And there are more than 4,450 federal crimes.
How in the world did we get to this place, so far afield from our founding principles? I have two theories.
The first is that you can pick up the paper almost every week and see in a story, letter or editorial some version of the hue and cry “there ought to be a law against (fill in the blank)” – and sooner or later some pandering politician is all too willing to propose a law to placate this frustrated individual or individuals.
My second theory – which actually enables my first theory – is that an increasing portion of our population, including many of our elected officials, has absolutely no clue about our political history and the notion that our country was an unprecedented experiment in limited government and individual liberty.
While still speaker of the House, U.S. Rep. Nancy Pelosi was asked by a reporter if she had any concerns about the constitutionality of certain provisions of the Affordable Care Act (which some refer to as Obamacare), in particular the unprecedented federal mandate that would require every American to purchase health insurance. In a mocking tone, Pelosi responded to the reporter by saying, “Are you kidding?” – as if to say that the speaker of the House thought it was almost frivolous for anyone to question the power of a congressional majority.
Whatever your individual belief about the notion of a federal health-insurance mandate (personally I agree that everyone who is capable should take responsibility for their health care, but I don’t believe the Constitution grants Congress the power to force Americans to buy insurance or any other product) – even the most liberal legal scholars have acknowledged that it is a valid question. Yet a speaker of the House of Representatives thought the question silly and without merit.
In fairness, I should also point out that Democrats don’t have a monopoly on proposing or passing unconstitutional laws. The so-called Patriot Act, first signed by President George W. Bush but reauthorized by several bipartisan congressional majorities, is a good case in point. Despite whatever threats we might face from enemies foreign or domestic, I do not believe that the Constitution permits our government to conduct such unwarranted searches and seizures as those authorized in this overreaching law.
In time, we need to repeal hundreds if not thousands of laws and rules in order to restore our constitutional freedoms and reduce the role of government in our lives. Until then, it’s in everyone’s interest to start asking anyone who suggests “there ought to be a law” to explain what part of our Constitution they think permits them or the government to impose their impulsive ideas on the rest of us.