"Does he love liberty? Or does he merely loathe the federal government?"

James Taranto looks at some problems with Ron Paul's claim to be a libertarian. I've agreed with that question on other grounds before, but the latest spice blow on Sunday's MTP was revealing (the full transcript's here) and solidifies my earlier impression that the man's a loon (I agree with Rafique on that point). As Taranto points out, it seems to have escaped Paul's notice that the north didn't start the Civil War, and it's no answer to say that other countries abolished slavery without a Civil War. My answer to him is basically the same as my answer to the libertarian critics of the CRA a year ago: "To be opposed to federally-imposed desegregation [wa]s to be opposed to desegregation, unless you can convincingly explain why the South - after nearly a century of failing to voluntarily desegregate - was suddenly going to get God and do so sua sponte."

And as someone who cares a lot about the Constitution, I continue to resent the implicit claims he makes about "constitutional-size government" looks like. Some of Paul's Constitutional interpretation is dead right, some is respectable but wrong, and some of it's just wrong. Even as someone who agrees with Paul that much of what the federal government does today is both unconstitutional and bad policy, I think he makes exactly the mirror-image of the mistake of big government liberals and Larsonites: they think that whatever they think is good policy, that's what the Constitution allows and no less; he seems to think whatever he doesn't like, the Constitution doesn't permit. The Constitution isn't deterministic enough on enough issues for the term "constitutional-size government" to be coherent; the Constitution would permit many different-sized federal governments (some of which need more revenues than could be obtained without the income tax, which seems to be his real beef). It has "limited content"; it doesn't provide answers to every question, but rather, "creates the three branches [of government], ... lay[s] down a few rules ...[, and] leaves to political accommodation the actual operation of the national government. Searching in the Constitution for a structure of government, as opposed to boundaries on the plenitude of possible structures, is an unrewarding task. The boundaries are few; the living must settle their own affairs."1 Even for people like me, who are dead serious about restoring real and substantive limits on the exercise of federal power, who believe that it's within both the power and duty of the federal courts "to protect the integrity of the structural constitution, wherein federalism is a key element," 2 nevertheless, it must be admitted that in the abstract, as a general proposition, the sweeping clause allows a great deal of elasticity in the size and scope of the federal government. "[S]ound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."3 But to paraphrase Justice Souter, it goes without saying that my views on the limits of Congressional power does not suggest I think those powers should be exercised to their limit.

HT: Althouse.

Post facto:
Spanners in the works (5/12/08)

1. 1. Easterbrook, Unitary Executive Interpretation, 15 Cardozo L. Rev. 313, 314 (1993).
2. 2. Cf. Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court - Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508, 552 n.193, 555 (2002) ("Generally, the conservative side of the Court has been more enthusiastic about enforcing the structural parts of the Constitution, and the liberal Justices have been more enthusiastic about enforcing individual rights")).
3. 3. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).