Kagan refuses to say whether there are any limits on Congress’ power

(Note, 6-30: see, below, my discussion of the exchange between Sen. Coburn and Kagan.)

Alexis Zarkov writes:

Senator Coburn asked Kagan (go to minute 20) if Congress has the authority to require Americans to eat three vegetables and three fruits every day. She immediately went into the liberal snark mode by saying, “sounds like a dumb law.” For the next ten minutes she danced, and he avoided really pressuring her. Essentially she said wouldn’t respond to dumb hypotheticals and blew him off. Your impression might differ from mine, so I urge you to watch the testimony. This is an extremely important area, as the whole modern liberal edifice of state power rests on expanding the Commerce Clause beyond its original intent so as to eviscerate the doctrine of enumerated powers.

I would have asked the question as follows.

General Kagan, let’s discuss the Commerce Clause as interpreted in Wickard v. Filburn. We know Congress sought to limit wheat production during the Great Depression as a price support mechanism. Farmer Filburn exceeded his acreage under the Agricultural Adjustment Act by growing wheat for his own use. The Court held that Congress had the power to limit the amount of wheat grown even for private use because it could affect interstate commerce by lowering the demand for wheat. If Filburn grew wheat for himself, then he would buy less wheat and that would affect its market price. General Kagan, I ask you if Congress has the authority under the Constitution to require every adult person in the United States to buy at least three wheat-based loafs of bread per week. Such a mandate would clearly serve and economic purpose as it would boost the demand for wheat and support its market price.

Coburn made a good attempt to get to the boundaries of the Commerce Clause with Kagan, but he let her squirm out of it. Let’s hope he tries again.

- end of initial entry -

June 30, 2:30 p.m.

LA writes:

I’ve just watched the segment Mr. Zarkov discussed. I don’t think it’s correct to say that Kagan didn’t answer the question. She clearly said that all economic activity comes under the commerce clause, and that only non-economic activity does not come under the commerce clause. So she articulated a very far-reaching interpretation of the commerce clause.

But it was even worse than that. Implied in her answer was that the Wickard case (about a farmer feeding his own wheat to his own animals) would come under the commerce clause. She did not answer Coburn’s question, “If it is determined that if people are required by law to eat three vegetables and three fruits a day, government health costs will decline by 30 percent, would such activity be economic?” But clearly Coburn’s hypothetical is indistinguishable from Wickard on the key point: a person is engaged in an activity which is deemed as having an economic effect, and therefore that behavior can be regulated. I wish that Coburn had nailed her down on the point and said, “Not only do you define interstate commerce so broadly that all economic activity is interstate commerce and thus can be regulated by Congress, but you define economic activity itself so broadly that any human activity involving any act of consuming a good is interstate commerce and thus can be regulated by Congress. So, General Kagan, it sounds to me as though you believe that Sect. 8’s enumeration of the limited powers of Congress really means unlimited powers of Congress, and that Congress does have the power to pass a law requiring people to eat three vegetables a day.”

Leonard D. writes:

You are right that Kagan believes in a “very far-reaching interpretation of the commerce clause.” However, it is worth emphasizing that her position is the established interpretation of the Constitution. This interpretation is challenged only by libertarians and perhaps paleoconservatives. Kagan is in the middle of the mainstream, both of left and right, in believing it. On the current Supreme Court, I think only Justice Thomas would be willing to challenge it. As Wikipedia dryly puts it:

[Thomas] believes federal legislators have overextended the Commerce Clause, while some of his critics argue that Thomas’s position on Congressional authority would invalidate much of the contemporary work of the federal government. According to Justice Thomas, it is not the Court’s job to update the Constitution.


As for Mr. Zarkov’s assertion that “the whole modern liberal edifice of state power rests on expanding the Commerce Clause beyond its original intent so as to eviscerate the doctrine of enumerated powers,” that is only true in a narrow way. Yes, the doctrine of enumerated powers is eviscerated. And Wickard is the particular historical case where the Supreme Court most clearly eviscerated it. But they had already agreed to much of the New Deal even without such overt deconstruction of the Constitution. For example the SC ratified the Social Security Act in 1937, three years before Wickard, using the “general welfare” clause, hokum, and duct tape. (This was one of the first cases after the “switch in time that saved nine.”) If it had not been Wickard, it would have been some other case. If the commerce clause had not existed, they would have found some other clause. (The general welfare clause is another favorite of the left; indeed, if USG ever does force you to eat your vegetables, general welfare seems to fit better than commerce.) And if by pure luck no unfortunately ambiguous clause in the entire Constitution had been there to justify inverting its meaning, they’d have just made something up. Penumbras and emanations.

Furthermore, even if we returned to a more sane interpretation of the Constitution, the powers that be would immediately amend it to empower the current interpretation. And they’d have the people behind them. We saw that in the Progressive era, before the popularization of the idea of just reinterpreting the Constitution to mean whatever was wanted. Back then Americans actually amended the Constitution instead of throwing stuff at the SC to see what might stick. Progressives passed the income tax (1913), popular election of Senators (1913), alcohol prohibition (1919), and woman suffrage (1920), all completely Constitutionally.

LA replies:
You act as though it made no difference whether a big government measure is passed constitutionally, via amendment to the Constitution, or by bending the Constitution out of shape and thus turning us into a lawless country. To me this is symptomatic of the (if I may say so) one-dimensional libertarian outlook, which simply opposes big government, and is not primarily interested in the Constitution. Thus one typically hears from libertarians the libertarian formula that the government should only do two things: defend the country from foreign attack, and defend citizens from force and fraud. One rarely hears from libertarians that the government should stay within the Constitution. In fact, libertarians do not like even the original constitution, since it gives the Congress far more powers than defending the country from enemies and defending citizens from force and fraud. The Constitution expresses and creates a political order larger than ourselves, and the idea that we live in a political order larger than ourselves is something libertarians oppose.

July 1

Leonard writes:

The point of my post yesterday was perhaps a bit unclear. I was responding to your particular post, where you asked anyone to show you where you are wrong, and I think you were wrong, but not in attributing to Kagan the idea that the legislative power is essentially unlimited. Rather, I think you were wrong in implicitly contrasting Kagan’s ideas to the mainstream. Perhaps even to your own views, though I am not sure. Are you now, or have you ever been, a supporter of Social Security?

As for the rest of your response … well this is getting a bit off topic, but still interesting to me.

I do think that how laws are passed matters. But this is not based on how they fit into a political order, but a matter of practicality. It is much harder to amend the Constitution than it is to pass a law. Thus, constitutionalism serves as a conservative force; a brake on legislative “progress”. Since I oppose the legal progress made under the New Deal state, I oppose the modern living constitution.

I do not see this as a matter of lawlessness. The New Deal state hardly lacks for laws! Nor is the constitution of the New Deal state in any doubt. I would agree that it is in some sense “less lawful” than the Old Republic, but on the other hand, it’s our ongoing reality and we must deal with it. By contrast the Old Republic is dead as a doornail. Certainly the transition from the Old Republic to the New was lawless, and that is part of why I dislike it. If they had done it aboveboard, by passing a Constitutional amendment that said “The Congress shall have the power to make any law it wants”, I would still oppose it, but I wouldn’t on Constitutional grounds.

I am amazed to see you claim that “one rarely hears from libertarians that the government ought to stay within the Constitution.” Actually, libertarians make this claim I think more than any other group. (Here’s a search at lewrockwell.com for “Constitution”; judge for yourself.) [LA replies: I was thinking of regular libertarians, not paleo-libertarians, who have or used to have some commonalities with the paleoconservatives, who did care about the Old Republic and the Constitution.] Most conservatives do call for a more originalist Constitution, but they balk when it comes to the logical implication of that, namely, advocating the abolition of the New Deal and Great Society. I.e., being called a racist who hates old people and the poor. Recall the sad saga of poor Rand Paul. Even many libertarians lose their nerve at that point, but many don’t.

There is considerable diversity in libertarian thought, and you are right in that some libertarians push the whole “nonaggression” thing far enough to end up opposing the USA even as it was in the Old Republic. But I think even hardcore libertarian anti-statists would agree that the Constitutional republic was a better government design than the New Deal state. Alas! Constitutions do not enforce themselves.

Posted by Lawrence Auster at June 29, 2010 11:05 PM | Send

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