Suppose we hold an election. One measure on the ballot reads as such:
“The group of people who vote ‘No’ or abstain from voting on this measure shall be required by law to pay a sum total of $30 billion to the group of people who vote ‘Yes.’ The funds shall be divided up evenly among the members of the recipient group.”
So, if the measure loses, nothing happens. If the measure wins with 60 million people voting “Yes” and 40 million people voting “No,” then 40 million people are forced to give up $750 each, and 60 million people receive $500 each. Such a measure is almost certain to win, despite the total disconnect between morality of such a measure and the incentive for the individual to vote “Yes” in the election. This is a foolproof way for one group to take money from another group in a democracy.
How can this ever be prevented?
The solution is to put forward a measure preventing such a situation through a general statement of principle. If you request a vote on a measure preventing government powers from being used to take money from some and give to others, then such a measure actually has a chance of passing. Though more than 50% may vote yes on a self-enriching money transfer, more than 50% would probably also agree that, in general, people shouldn’t be able to use governmental powers for such monetary transfers.
And this is why we have a Constitution, and we must hold to it strictly. The Constitution of the United States is the compendium of “statements of principle” of this nature. This document keeps tyranny of the majority in check by creating consistency in the law through the establishment of democratically-decided common principles.
However, the power of the Constitution as a set of democratic principles preventing tyranny of any particular majority runs into trouble when reinterpretation of wording occurs. Over the last century, the Supreme Court has gutted the Constitution to the point of impotency through reinterpretation by fiat. The interpretation of the Commerce Clause has been expanded by no democratic means to include all commerce, when in fact the text of the clause only describes “commerce among the several states”- a statement which would originally have been clear to refer to interstate commerce alone. Various other severe reinterpretations exist, but it is this specific case which puts our country in danger of losing any sort of statement of common principles at all.
Indeed, in Commonwealth of Virginia v. Sebelius, U.S. District Judge Henry E. Hudson ruled the recently-passed health care mandate unsupported by the Commerce Clause partially because such a reinterpretation of the clause would’ve removed all limits on government activity. To allow the federal government to regulate lack of commerce as well as commerce would effectively make totalitarianism constitutional, where it once was not. I do not believe, and Hudson agrees, that any nation that could legitimately call itself a democracy would allow judicial fiat to rip away entirely the common principles established through the democratic process.
In this sense, Hudson’s ruling is a good first step to restoring the democratically-decided limits on the powers of government, but it’s still not enough. Any activity that the government deems as having an effect on commerce, it can regulate at will under the modern interpretation of the Commerce Clause. The text of this clause has not been amended, so the power that it allows should not have changed as it did at the beginning of the 20th century. I do not see this modified interpretation of the clause as legitimate government, and neither should anyone else who supports the idea of democracy.
We, as a democratic people, need to reassert our statement of principles. We must amend the Commerce Clause to an unambiguous form, so that the agreed upon principles of the people trump arbitrary modifications by illegitimate judicial rule. I propose we restore the Commerce Clause to a more explicit version of its originally intended form:
“The federal government shall have the power to ensure that no governing power restricts trade between the states.”
If we can do this, we can restore a government of principles. We can remove the legitimacy of totalitarian or tyrannical rule within the United States by once again making it unconstitutional.