Scott and Paul rightly express skepticism over George Will’s optimism that the Supreme Court will follow the plain language of the Constitution’s “origination clause” when it comes to Obamacare’s “tax.” I mean, after all this time, why start following the Constitution now?
Whether and how the judiciary should be “activist” in defense of liberty is a question that divides conservatives and has a long history, but let’s step back for a moment and just take in the extent to which the problem of the Administrative State is much broader than the scope and method of the Supreme Court today. Doing so will help us recognize that even if the Supreme Court were more inclined to defend liberty more actively, it wouldn’t be enough.
Consider here a few lengthy excerpts from a speech by a very wise statesman on “The Limitations of the Law”:
Urged on by the force of public opinion, national legislation has been very broadly extended for the purpose of promoting the general welfare. . . Much of this has been accompanied by the establishment of various commissions and boards, often clothed with much delegated power, and by providing those already in existence with new and additional authority. . .
This has not been accomplished without what is virtually a change in the form, and actually a change in the process, of our government. The power of legislation has been to a large extent recast, for the old order looked on these increased activities with much concern. . . This is not the government which was put into form by Washington and Hamilton, and popularized by Jefferson. Some of the stabilizing safeguards which they had provided have been weakened. . .
Advancing along this same line of centralization, of more and more legislation, or more and more power on the part of the National Government, there have been proposals from time to time which would make this field almost unlimited. The authority to make laws is conferred by the very first article and section of the Constitution, but it is not general; it is limited. It is not “All legislative powers,” but “All legislative power herein granted shall be vested in a Congress of the United States.” The purpose of that limitation was in part to prevent encroachment on the authority of the States, but more especially to safeguard and protect the liberties of the people. . .
So long as the National Government confined itself to providing those fundamentals of liberty, order, and justice for which it was primarily established, its course was reasonably clear and plain. No large amount of revenue was required. No great swarms of public employees were necessary. There was little clash of special interests or different sections, and what there was of this nature consisted not of petty details but of broad principles. There was time for the consideration of great questions of policy. There was an opportunity for mature deliberation. What the government undertook to do it could perform with a fair degree of accuracy and precision.
Just who was the wise person who uttered these cogent observations? It was Vice President Calvin Coolidge, in a speech to the American Bar Association in San Francisco, August 10, 1922. I’ve always said that the real reason liberal historians decided to deride Coolidge as “Silent Cal” is that they didn’t want anyone to discover his good sense. There’s more from this remarkable speech, “The Limitations of the Law,” but I’ll save them for a future post.