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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, September 05, 2011 ::
    SCForum and Ron Paul's Constitutional Problems

    Although Ron Paul probably thinks harder about the Constitution than any candidate, that's only good if you don't get the answers majorly screwed up. RP commits two major screw-ups: he seems to think only the anti-Federalists count as "Framers" (they actually opposed ratification of the Const. b/c it gave us, ahem, big govt); and he thinks the Const. is the Philadelphia '87 document + Bill of Rights. His colloquy with Prof. George on the 14th Am. shows he has no clue how that Am. works and doesn't really want to get any.

    The Anti-Federalists were co-Framers, but they were the losers in the ratification debate. To them we owe the Bill of Rights, but if we view the process of making the U.S. Constitution exclusively through their eyes, we will fail utterly to see what it transparently was: a last-ditch effort to save a federation that was tottering because its national government was too weak and too feckless. The need in 1787-88 was for MORE GOVERNMENT. The only question was, HOW MUCH. And that debate was won by the MORE side of that era, not the LESS side. Delight in that, or deplore it, but don't construct fantasies in which it didn't happen.

    Then there's Ron's refusal to allow that the 14th Amendment says what it says, which is to give a vague but obviously large quantum of NEW power to Congress, via the combination of its 1st and 5th Sections. HOW MUCH power is a matter of opinion and legal argumentation; that a federal power augmentation occurred is a FACT, and repeating the coequal fact (not disputed) that the 9th and 10th Ams still exist doesn't change that. (In fact, by the universally accepted later-in-time rule, a later Amendment prevails over an earlier whenever there is an irreconcilable conflict; tho' of course an interpreter's first job is to reconcile the two and avoid the conflict.)

    We have a lot of Republican candidates this year who talk a lot about the Constitution. I'll give Ron Paul this: he goes farther than the others in specifying what he means. And he's right that the Commerce Clause and the Necessary & Proper Clause need some re-think. But in some areas I worry not about what he doesn't know, but about what does know that ain't so.

    :: David M. Wagner 8:37 PM [+] ::

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