- Supreme Court Justice Antonin Scalia is a smart man and
an excellent writer. He is also a living example of how bad political and
philosophical premises can put great talent in the service of an evil
cause.
-
- In November, while speaking at the University of
Missouri,
Scalia was asked what he thought about proposals to impose a national ID
card on the American people. Scalia said he personally opposes the idea
and would vote against it if it were put to a vote. But when a student
asked him whether a national ID would violate the Constitution's Fourth
Amendment, which protects individuals "in their persons, houses,
papers,
and effects, against unreasonable searches and seizures," Scalia
pointed
out that the Amendment says nothing about an ID card.
-
- Then he went on to say (I quote from an Associated Press
report), "'If you think it's a bad idea to have an identity card,
persuade your fellow citizens' through the amendment process, rather than
asking courts to make policy."
-
- Scalia here is saying that the government may require
everyone to carry an ID unless the people amend the Constitution to
prohibit
Congress from enacting such a measure. He implies that the government can
do virtually anything unless the Constitution expressly forbids it. No
surprise here. Scalia has long made his views known.
-
- But his views are based on an incorrect - indeed, a
pernicious
- notion of what the U.S. Constitution was and is supposed to be. In fact,
he stands the Constitution on its head. Instead of a document that protects
individual liberty by reining in government power, Scalia would make it
one that protects government power by reining in individual liberty.
-
- James Madison, the acknowledged father of the
Constitution,
said that the central government was delegated powers that were "few
and defined." This is backed up by the Constitution itself. Article
I, Section 8 contains a short list powers given to the Congress. To
reinforce
this point, the Tenth Amendment in the Bill of Rights, which was adopted
at the urging of those who thought the Constitution would allow the
government
to grow too powerful, says, "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved
to the States respectively, or to the people."
-
- The upshot is that the national government was not given
a general grant of power to do whatever it thinks is right. It was given
specific powers and only those. Any others belong to the states or the
people. Or to put it more bluntly, if it's not expressly in the
Constitution,
the national government can't do it.
-
- This is not only clear from the constitutional text,
it is the only scheme consistent with the idea of a constitutional
republic.
A constitution such as ours is needed only if the intent is to limit the
powers of government in behalf of liberty. A "constitution" that
limits liberty in behalf of government power is a contradiction.
-
- The Founding Fathers wanted to safeguard individual
freedom.
So they made the task of amending the Constitution difficult. But Scalia's
way of thinking, which first seized politicians and judges long ago,
reverses
the Founder's basic intention. If government can do anything except that
which is expressly prohibited by the Constitution, then the onerous burden
of amending the Constitution, instead of falling on those who favor
expanded
power, is now on those who favor preserving freedom. The Founders must
be spinning in their graves.
-
- Scalia's remark shows clearly how America's political
system has been turned against liberty. It is thus a perfect illustration
for a new book, Dependent on D.C., by Professor Charlotte Twight of Boise
State University (Palgrave/St. Martin's Press). In this important book,
Professor Twight demonstrates how government leaders have inverted the
American system, first, to keep the people from knowing what the
politicians
are doing and, then, to make it costly for the people to object. She calls
it "manipulating the political transactions costs." Twight
demonstrates
her thesis with several case studies, including the passage of Social
Security
and Medicare.
-
- If we are to restore our liberties and get government
under control again, it behooves all Americans to understand what Charlotte
Twight has to say.
-
- Sheldon Richman is senior fellow at The Future of Freedom
Foundation in Fairfax, Va., and editor of Ideas on Liberty magazine.
-
- http://www.fff.org/comment/com0204d.asp
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