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Friday, March 02, 2012

Ron Paul Flip-flops

Ron Paul happily quotes Ann Coulter to continue his attack on "unconstitutional" Rick Santorum [bolds are Paul's]:

The Constitution mostly places limits on what the federal government can do. Only in a few instances does it restrict what states can do. 

A state cannot, for example, infringe on the people’s right to bear arms or to engage in the free exercise of religion.
...
And yet when Santorum tried to explain why states could ban contraception to Bill O’Reilly back in January, not once did he use the words “Constitution,” “constitutionally,” “federalism,” their synonyms or derivatives. Lawyers who are well familiar with the Constitution had no idea what Santorum was talking about.

Ah, so long as you use the "holy words" you can live up to Paul's perverse vision of states' rights, but lacking such totems nullifies anything you say about what the states can do.  Magic!

Yet that is not central to my point.  This is:

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

I'm squinting real hard, and I don't see anything about bearing arms or free exercise of religion.  Oh, wait, that stuff's in the Bill of Rights.  The Bill of Rights that Paul has previously said doesn't apply to the states [bolds are mine]:

The Kelo case also demonstrates that local government can be as tyrannical as centralized government. Decentralized power is always preferable, of course, since it's easier to fight city hall than Congress. But government power is ever and always dangerous, and must be zealously guarded against. Most people in New London, Connecticut, like most people in America, would rather not involve themselves in politics. The reality is that politics involves itself with us whether we like it or not. We can bury our heads in the sand and hope that things don't get too bad, or we can fight back when government treats us as its servant rather than its master.

If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases — not only when it serves our interests. The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law.

To his credit, Paul acknowledged that any government can be tyrannical, which is not something he generally focuses on.  However, he still glosses over the role of different levels of government as checks against each other.  

As Madison said when introducing the Bill of Rights during the First Congress:

The words, "No State shall pass any bill of attainder, ex post facto law," &c. were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community...it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.

And Federalist 10:

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States...A rage for [any] improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

Finally, Federalist 44:

The truth is, that [the] ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

Why do local issues sometimes wind their way up to SCOTUS?  Because decentralized tyranny can be more problematic to overcome when you're an oppressed minority or powerful local interests hold sway.  Federalism is not about giving the lion's share of power to states, counties or municipalities over the central government, but rather giving appropriate powers to each and creating tension between them so none can usurp powers and trample individual rights for long without recourse [note: Kelo was decided in favor of the city].

That's one reason why our framing document mentions "due process" and "privileges and immunities" and "equal protection" and whatnot in the 5th and 14th amendments.  Of course, Paul really hates the latter because that's what gives rise to the dreaded, "phony" incorporation doctrine.  He'd rather pretend it's not part of the Constitution, just like other inconvenient clauses.

But hey, none of that matters when you are attacking a rival.  I suspect he's just jealous that another wackadoodle is getting better traction with the "states can do anything [winkwink]" gambit.  So much for Mr Consistent...

ntodd

March 2, 2012 in Constitution, Schmonstitution | Permalink

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