Ron Paul Re-Litigates McCullough v. Maryland

Ron Paul, recently-declared candidate for the Presidency and halfway tea party hero, offers a constitutional vision where Medicare, Social Security, and most other things are unconstitutional:

I’m not sure to whom this kind of pitch appeals — possibly, exclusively, the extremist narrow-government types who see congressional and presidential overreach everywhere they look, but only since January 20, 2009. Either way, the approach contrasts with the way we’ve run this country since the early 1800s. It was settled early in our national history that a government of enumerated powers differs from a government of only enumerated powers.

The Founding generation specifically rejected the notion that the Tenth Amendment, or any constitutional doctrine, prohibits the government from exercising a power “necessary and proper” to the execution of its expressly delegated authority, and courts have, without exception, noted their duty to defer to Congress’ reasonable construction of its powers, lest they truly become “activists” in unnecessarily striking down congressional prohibitions.

Ron Paul would have us return to the Articles of Confederation. I’m not sure why.

Authorities follow below the jump. 

From McCulloch v. Maryland, 17 U.S. 316 (1819):

This Government is acknowledged by all to be one of enumerated powers. [. . .] But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist. [. . .]

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. [. . .]

More, so extensive is Congress’ power to act under the implied power clauses, that the Court must defer, as a matter of judicial restraint, to Congress’ construction of its authority:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

Id. Nor is the conclusion particularly ancient: it was adopted, and given new life, to justify the Social Security Act against its first challenge:

Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire.The issue is a closed one. It was fought out long ago. [Note 10.] When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield.

From Helvering v. Davis, 301 U.S. 619 (1937). Note the hefty tea party-style arguments leveraged by plaintiff in this case, and their ringing rejection. Note 10, too, remarkably, refers to secession. Truly, there is nothing new under the sun.

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7 comments

  1. “I’m not sure to whom this kind of pitch appeals…”

    Apparently a considerable number of young people.

    http://www.npr.org/2011/05/16/135990053/ron-paul-why-the-young-flock-to-an-old-idealist

  2. When the Congress of powers makes uses
    It may do so however it chooses.
    Now established these facts,
    We prohibit your tax
    Else the government sovereignty loses.

  3. Fantastic, Ian. And young people are attracted to magnetic personalities and idealism. This isn’t new. It’s also not new that those with those qualities would be, in the end, empty suits.

  4. Magnetic personalities and idealism = empty suits?

  5. Not always. And actually not here, I take that back. Ron Paul honestly believes what he’s saying, and he’s put a lot of time and thought into it. He just happens to be clearly wrong.

    1. I’ll take “clearly wrong” over John Marshall’s linguistic sophistry any day. “omits the word “expressly,””? That’s even bigger bullshit than Barron v. Baltimore was!

  6. Wrong on this issue perhaps (though I think it’s a little more complicated than that) but he IS right on a lot of other stuff which is why young people like him. His brand of libertarianism and anti-interventionalism is an easy sell these days.

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