Wednesday, November 25, 2009


First, Judge Smails passes along the good news that the aforementioned pay-for-prayer silliness, while in the HELP version of the bill, did NOT make it into either the House bill nor the merged Senate bill that is currently under consideration. So that's good.

Over at, Tom Schaller has a really nice summary of arguments centered on the Constitution. Check it out. Two of my favorites:
First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies--see point #3, below--doesn't mean they didn't want the government to have any policies. If they did, why create a legislature?

Fifth, if you want to be a strict constructionist, fine, but be one even when it’s inconvenient. Imagine if the Second Amendment read as follows: “A woman’s ability to survive childbearing being necessary to a free state, the right to abort a fetus shall not be infringed.” Now, do you think the anti-choice movement would simply ignore the leading clause and resign themselves to the idea that a woman has an unconditional right to abortion? Not a chance, and they'd be right to fight because the language clearly implies a conditional right. And yet we almost never hear gun rights advocates mention the actual Second Amendment’s leading clause, “A well regulated militia being necessary to the security of a free state….,” which at least suggests a collective right—indeed, obligation—to an armed defense of the state, rather than an individual’s right to use arms to protect himself and his property. For the record, I support gun rights with some restrictions, but that’s besides my point, which is that you can’t be so selective in citing the language in the Constitution that you chop off inconveniently ambiguous parts of the same sentence upon which you base a categorical claim.