Friday, November 7, 2008
Richard W. Rahn, senior fellow at CATO, published an op-ed in the Washington Times this week arguing that the federal bank bailout is unconstitutional. The arguments aren't new--and we've covered the issue here--but Rahn goes further: He ties the bailout to other "excesses" in our constitutional history, then to rights and to "living constitutionalism" in an argument for some unnamed version of originalism. Rahn:
There have always been political pressures on the courts to read nonexistent things into the Constitution. After President Franklin Roosevelt attempted to pack the Court to obtain approval for his "New Deal" excesses, the Court did not allow much of the new regulation and reinterpreted the commerce clause far beyond the original text. This abuse of the commerce clause over the last 75 years is the source of many of today's economic problems.
In recent years, as the court's makeup has changed, there has been a slow drift back toward interpreting the Constitution on the basis of the original text and/or what appears to be original intent. Those who are unhappy with this decision, rather than following proper procedures to amend the Constitution, now argue that judges should be appointed who will interpret the Constitution in light of "today's circumstances" and their own preferences and outcomes. Advocates of the "living constitution" frequently advocate the addition of "active rights," such as the right to a home, free medical care, etc., as contrasted with "passive rights," such as freedom of speech, religion, press, assembly, the right to bear arms, etc.
"Active rights" force one person to provide for, or subsidize, another person, unlike "passive rights" which do not diminish another's liberty. If you think the "government" should pay for your medical insurance, you are advocating that some other person should pay your bills. . . .
America's founding fathers clearly understood the dangers of "active rights," which is why they kept them out of the Constitution. The American Republic can correct the occasional abuse of the Constitution, such as the bank bailout legislation, but it may not survive the wholesale ignoring of the original text by allowing judges to suddenly create "active rights." . . .
Earlier in the piece Rahn argues that the bailout will become a political problem (for supporters) and that the courts will rule the bailout unconstitutional. But, he claims, the "Republic will carry on," because the political branches will then know that this kind of action is "impermissible." (Ask your students how they'd plead a case in federal court challenging the constitutionality of the bailout. What barriers do they face? Can they get over them?)
I recommend the piece for your students. Ask them to sort out Rahn's line of argument to see whether his reductio ad absurdum holds water: The bailout is an example of a constitutional excess; the bailout, as a constitutional excess, is perfectly consistent with other historical excesses and supported by the "living constitutionalism" school of interpretation; "living constitutionalism" gave us "active rights," which lack textual support in the Constitution (and thus, like the bailout, are unconstitutional); and therefore to avoid excesses like the bailout we must adopt some unnamed version of originalism. Does this follow?