Friday, March 29, 2013

Federalism and Constitutional Jurisprudence: Where Mark Small Goes Wrong

If you're around Mark Small very long, you'll hear tales of his wild life as a college student - so wild was one of those years, 1975, that he wrote a two volume book on the subject.  Although the counter culture movement which began in the mid-1960s was fading quickly when he entered college in the 1970s, Mark struggled mightily to keep the movement alive all by himself at DePauw University.   Skipping class and recreational drug use was Mark's way of fighting the Mean Old Establishment.

Mark was a first year student, when I was a third year student.  The final year of law school, I was then President of the Student Bar Association.  I, along with other SBA members, gave a presentation to the incoming class.  In the audience was none other than the infamous Mark Small. 

I got to know Mark during that final year. One of my final acts on behalf of the student body was talking him into taking over as Editor of the Dictum, the law school newspaper. H e still holds a grudge about my getting him involved in the newspaper which did consume a lot of time while offering few rewards.

Mark Small (appropriately to the left) on Civil Discourse Now
One thing I learned about Mark is that he will say the most bizarre things when discussing politics and the legal system in particular..  I can't tell if he simply skipped too many government and law classes or whether there just aren't enough brain cells still functioning.  No better example exists than yesterday when Mark began talking about our Constitution and Federalism on the Gary Snyder show yesterday.

I taught introductory classes at the University of Indianapolis and IUPUI for over 20 years.  One of the things I taught was the basic structure of federalism.  Basically it works like this.  The Constitution contains a listing of powers that Congress has in Article I, Section 8.  In order for the national government to pass a law, it has to be tied specifically to a power listed in Article I, Section 8.  States on the other hand operate in the exact opposite way.  States do not have specific delegations of power, but can pass laws unless there is a specific prohibition in the Constitution prohibiting states from passing those laws.  These powers exercised by states are often called reserve powers.

Both the national government and state government have autonomy in their respective areas.  But if you draw a chart of the power of the national government and of the state, you will note there is an area of overlapping powers.  In that area, when both the state and national government can legislate and choose to do so, the national law wins out due to Article VI's Supremacy Clause.

For over 220 years our federal structure has remained the same.  The only major change came with the ratification of the 14th Amendment in 1868 that was interpreted, on a case-by-case basis, as applying the protections in the Bill of Rights to the States.

The concept of Federalism is actually quite simple.  But for Mark Small, whose brain synapses have been firing only sporadically since that fateful year of 1975, Federalism exists no longer.

First, Mark does not believe there are any limits whatsoever on the power of the national government under our Constitution.  Let's forget the specific listing of national power in Article I, Section 8, Mark doesn't care if something Congress wants to do is not on that list.  Mark believes Congress' power is limitless as long as it doesn't violate someone constitutional right as interpreted by the Court.  (More on his view of the "evolving" Constitution later.)

When it comes to States, Mark does not believe states have independent power in the Constitution.  Rather he believes States are merely subunits of the Federal Government, purely administrative bodies with no actual independent legal authority beyond what the national government allows states to do. 

Our government began as a confederation under our first constitution, the Articles of Confederation, and became a federal one under our current constitution.  Since our current Constitution has barely changed since it was adopted in 1789, how then does Mark conclude that our government has made a dramatic shift from being federal in nature to being a unitary system?

It's hard to tell given when you talk to Mark about the Constitution you get a sense of a man trying to clear a room of fog by waving a broom around wildly.  The fog goes where it wants to go despite the best efforts of the man.  But as best I can tell Mark believes the 14th Amendment's Due Process Clause and the already existing Supremacy Clause combined somehow to create a magic potion that transformed our federal system to being unitary in nature.  Of course there are no actual court decisions that repealed our federal system and to this day Congress is still required to specify its authority to pass laws when it does act. Mark doesn't let facts get in the way of his view of how the state and national governments relate.

When you move away from the topic of Federalism to the more general topic of how to interpret the Constitution in general, Mark's views get even more wacky.  The actual words of the Constitution and history behind it have no meaning, according to Mark, because the document "evolves" over time.  Take the 8th Amendment's prohibition on "cruel and unusual punishment" for example.  In three places, the Constitution mentions "capital punishment," i.e. the death penalty.  It is obvious that the Founding Fathers, who Mark likes to call the "Framers," did not intend to do away with the death penalty.  Mark though doesn't care about the actual words of the Constitution or the history behind those words.  To Mark, society has "evolved" and therefore the interpretation of the 8th Amendment should be changed by judges to ban the death penalty.

Of course state legislatures already have the power to ban the death penalty and several have.   Eighteen states don't have the death penalty, with Maryland being the most recent to prohibit capital punishment this year/   The elected legislators in those states apparently concluded that the death penalty is barbaric, not a deterrent, and/or is too expensive, and decided not to have it in their states.  Bully for them.

But for Mark leaving the decision of when society has "evolved" and the law should be changed in the hands of elected representatives of the people is wrong.  Mark believes that judges are not only to interpret the constitution and laws, they should be free to enact policies that are good, even if it means twisting and ignoring the actual words of the Constitution.  In Mark's world of jurisprudence, the actual words of the Constitution and its history are meaningless.  Judges can enact whatever polices they feel is best with the only check being a higher court that might disagree on what those policies should be.

With all due respect to my misguided friend, Mark Small, his view is elitist.  He looks down on the notion of people governing themselves by electing representatives.  He views elected legislators as not being very bright and the voters who put them in office as even dumber.  Federal they are smart ones.  Let them enact the laws, Mark says.  Okay, he doesn't say that directly, but that is exactly the result of his philosophy of jurisprudence.

In response to his view of the Constitution as "evolving" Mark will undoubtedly point to the change in technology which our Founding Fathers could never have envisioned.  He will also point to the very difficult process of amending the Constitution to effect the changes that judges can make more easily by twisting words and ignoring history.  But the problem with this argument is that it seeks to prove too much.  By suggesting that the Constitution "evolves" and the document is "living" to be changed at a whim by judges, the position renders the document meaningless...a mere tool to be manipulated by smart judges who want the cloak of legitimacy when they by judicial fiat adopt "good" policies that the elected representatives are just too stupid to enact.

Yeah, I don't buy that is the way our system works or should work.


Pete Boggs said...

Like a gun, car, Alinsky's rules book or a sock; the Constitution is inanimate. "Living document" is relativist lingo on par with dry martini.

Living applies to sovereign patriots, who exercise literacy to understand the Constitution for themselves, in realization of their right to self determination; owing nothing to the opinion of any government, other person or profession (i.e. law). The Constitution belongs to the people; not any court, person or the profession of law.

The desire to control the lives of others is not a right; but a pathology.

Flogger said...

The Constitution and what I might call it's spirit has long been trashed.

I think it says somewhere that Congress has the Power to Declare War. They have not exercised that Power since 1941. Yet, how many Wars has the USA engaged in since WW 2 ended? Congress just gives the War Powers to the President without the rigor of a discussion and just as important how to pay for them.

We were supposed to have the spirit of the Law with due process, but we had extra-ordinary rendition, torture, and now the President can fire off drones and kill people based upon secret "intelligence." Pardon me, but it seems that the Organs of State Security and Intelligence failed big time on those WMD's in Iraq.