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A More Perfect Union and a Perfect Straw Man

Justice Scalia gave a talk at George Washington University yesterday.  He emphasized the structural aspects of the Constitution, including federalism and the bicameral legislature, as underappreciated factors in the preservation of freedom.  Alex Hopkins has this story at the Washington Times.  Tony Mauro has this post at BLT.

Elizabeth Wydra of the Constitutional Accountability Center has this post on the speech, giving us a fine example of the straw man fallacy.  She discusses the fact that the Constitution was drafted to make a federal government more robust than the anemic Articles of Confederation government.

Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government.
Huh?  What "conservatives like Justice Scalia" make such a claim?
I don't doubt that there are some fringe types who want to return to the extremely cramped view of the Commerce Clause that existed in the first third of the twentieth century.  At one event, I heard a speaker actually assert that Hammer v. Dagenhart (1918) was correctly decided and should be reinstated.  But these are harmless cranks.  Not a single Justice of the current Supreme Court shares this view, and the risk of ever getting a majority of that opinion is infinitesimal.

The historical context shows that the Founders were just as, if not more, concerned with creating an empowered, effective national government than with setting stark limits on federal power.  When we think about the preamble to the Constitution, which declares that "We the People" have ordained and established the Constitution in order to create a "more perfect Union," it is important to remember that the Framers sought to create a system of government more perfect than the British tyranny against which they revolted and more perfect than the dysfunctional Articles of Confederation under which they had floundered as a fledgling nation.
Yep.  That's all true.  And it is not in the least inconsistent with originalism.  Why does Wydra think that "conservatives like Justice Scalia" don't agree?

In the early days of the American Republic, the young nation faced a multitude of difficulties--a woefully underfunded army and navy, uncertain day-to-day funding of the federal government, and disagreements among the States on everything from debt to commerce to meeting treaty obligations.  Unfortunately, the nation, then bound by the Articles of Confederation and its ineffectual model of central government, also lacked a national government with sufficient power to address these challenges, which transcended state lines and implicated a national interest the federal government was not yet empowered to protect. 
Yep.  We're still good.

Today, our nation faces new problems that spill across state lines and affect the public interest of the country as a whole, including the country's health care crisis, which the Court addressed in the Obamacare case, and the scourge of air pollution, which the Court will consider this coming Term in the EPA v. EME Homer City Generation case.  Fortunately, our enduring Constitution conveys ample federal power to address these problems.
Ah, now we are in to something different.  From the indisputable premise that the Constitution created a federal government strong enough to deal with issues that the Articles of Confederation Congress could not, Wydra seems to be extrapolating to the idea that federal power is infinitely elastic to encompass any problem that is deemed to require a federal solution.  This is a non sequitur to go along with the straw man.  The Convention considered and rejected a broadly worded proposal to empower the federal government to legislate "in all cases in which the separate States are incompetent."  Instead, the proper subjects of federal legislation are enumerated in Article I, section 8.  If this list proves inadequate, the way to expand them is provided in Article V, amendments.  For example, each of the post-Civil War amendments (13-15) includes a new power in Congress to enforce its substantive provisions.

Nothing in the Articles of Confederation background that Wydra lays out contradicts the view of originalists that the Constitution must be enforced as originally understood unless and until amended via Article V.  That includes the proposition that the powers of Congress are limited to those enumerated in the Constitution and its amendments.  Requiring people to buy health insurance isn't one of them.

As for the Articles of Confederation background being "missing" from Justice Scalia's talk, it was a talk, not a treatise.  A great deal must necessarily be "missing" from a talk of an hour or so.

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