I’ve never paid much attention to Glenn Greenwald, but this post was enough to earn him a place in my feed reader:
[Ron Paul’s] argument is that the Constitution does not allow the Federal Government to do so, regardless of whether it’s desirable. If one wants the Federal Government to exercise specific powers which the Constitution prohibits, then the solution is to amend the Constitution, not to violate it because of the good results it produces.
While there are certainly arguments to dispute Paul’s constitutional view (the Supreme Court, for instance, has had to reach to Congress’ Article I authority to “regulate Commerce . . . among the several States” in order to “justify” many of these Federal Government activities), the argument that there are “good results” from having the Federal Government do these things — or that there would be “bad results” if it didn’t — isn’t a coherent or responsive reply to Paul’s position.
It’s either constitutional or it isn’t for the Federal Government to exercise these powers, and it’s irrelevant (for this argument) whether there is a “need” for the Federal Government to do so (for exactly the same reason that it’s irrelevant whether unconstitutional and illegal warrantless eavesdropping is beneficial for guarding against Terrorist attacks). Regardless of one’s view of Paul’s specific Tenth Amendment theories, it is critical to emphasize — as a general matter — that “good results” is not a justification for having the Government violate the Constitution or any other law. That’s true when the violations are committed by the Bush administration or anyone else.
The general point that violating the constitution is wrong even if it leads to results we like is a position that hardly anyone in mainstream politics takes seriously. Of course, there are people on both the left and the right invoke the constitution in stump speeches (usually it’s mostly the party out of power), but both sides are frustratingly selective about which provisions they pay attention to. The left is (rightly) outraged that the Bush administration is trashing the Fourth Amendment, but they’re perfectly willing to countenance tortured readings of the First Amendment in the name of “campaign finance reform,” of the Second Amendment in the name of “gun control,” and of the Fifth Amendment in the name of “urban planning.” While some leftie legal scholars make a half-hearted attempt to make a constitutional argument, you find that the real argument boils down to “if we took those amendments seriously, the government wouldn’t be able to pursue policies we approve of.” This is sometimes framed in terms of “compelling state interests,” which is another way of saying the court thinks there’s some policy goal it thinks is more important than taking the words of the constitution seriously.
Of course as we saw in Raich, no one in mainstream politics, left or right, has any interest in taking the Tenth Amendment seriously. And frankly, I think we’re now at a point where there’s no serious chance of that changing in the foreseeable future. But it’s still refreshing to have someone pointing out that the constitution actually does say something intelligible about what the government should and shouldn’t be doing, and that much of what the federal government is currently doing is in flagrant breach of its requirements.