The Party of ‘No’
In an otherwise well-argued case against the case against the individual mandate, the estimable Robert Dworkin laments
the strict and arbitrary language of an antique Constitution
that limits congressional power. And he’s right! The Constitution is quite old, and it is full of “strict and arbitrary language.” Here are some other examples:
* “The privilege of the Writ of Habeas Corpus shall not be suspended…”
* “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”
* The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”
* “No person shall … bedeprived of life, liberty, or property, without due process of law…”
* “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Boy, look at all those strict and arbitrary restrictions! The fellows who wrote that stuff were a real Party of No, weren’t they? Government can’t do this, government can’t do that… Why did they have to be so negative?
(Here endeth the sarcasm.)
Personally, I’m glad the Constitution has all this rigid and arbitrary language. And I would wager that Dworkin, despite his casuistic tendencies, is too. So it’s rather disingenuous of him to lament the existence of such language when it’s inconvenient to the policies he would like to see implemented….