A Stitch in Haste

Sometimes we blawgers and blawg readers tend to lose ourselves in the "higher thinking" of the blawgosphere when major decisions such as Gonzales v. Raich (medical marijuana), Granholm v. Heald (Internet wine sales) or CEP v. Bruning (Nebraska same-sex marriage ban) are handed down.

Which is unfortunate, because while those of us "in the know" debate the finer points of these cases and analyze who voted for what and who wrote what and how does this case relate to that case and what will change when Rehnquist or Stevens or O'Connor leaves the Court, we forget that most people aren't "in the know."

And while we blawgers all dance on the head a constitutional pin over important but esoteric questions of "what are the bounds of federalism" or "which part of the Constitution trumps which other part" or "what does rational basis review really mean," far more basic concepts get lost in the shuffle, especially for the laity.

Consider this example — an AP piece discussing how the "Rehnquist legacy" will play out:

The chief justice has been the leader of the "federalist five," the five conservatives who generally support states' rights and advocate limited federal government interference.

Not exactly. Words have meaning. There is no such thing as "states' rights;" there are only individual rights. The issue is better described as one of states' powers (and in the context of Raich, federal powers and the limitations — or lack thereof — on those powers).

Libertarians should always feel a shudder down their spines when they hear the term "states' rights." It's a bottom-up term that invites abuse. It implies that "government" can do anything and everything it pleases, with the only question being "federal or state (or both)?" The proper analysis of any policy should be top-down: Does the government have the authority to control this aspect of our lives? If and only if so, then and only then should the next question arise (i.e., Should the control come at the federal or state level?).

More:

Those five ... have voted together to strike down federal laws intended to protect female victims of violent crime and keep guns away from schools. Their reasoning is that those issues are better dealt with at the local level.

Um, no. This is not only wrong, it's dangerously wrong. The so-called "federalist five" do not argue that the "federal versus state" question is answered by which government can best "control" an issue. They instead argue that we live in a constitutional republic of enumerated powers (and unenumerated rights) and that government, or at least Congress itself, cannot pass any and every law it likes — it must have some constitutional basis to do so. The failure of current jurisprudence is to see "constitutional basis" behind every nook and cranny of the Constitution, whether in the Commerce Clause or the Necessary and Proper Clause or whenever else happens to be convenient. Limitations on government, meanwhile, such as the Ninth Amendment and the Fourteenth Amendment Privileges & Immunities Clause, are cloaked behind "inkblots."

It's not enough for blawgers to keep politicians and judges honest. It's not enough to keep partisan commentators and activists honest. It's not enough to keep ourselves honest. When it comes to the key constitutional questions of our time, it's vital that we keep the lay media honest, even if they don't mean to be dishonest.

If we don't, then we'll just be reinventing the same wheel forever.