The Founders Betrayed
Former New Jersey Superior Court Judge Andrew P. Napolitano recently asked the third-ranking Democrat in the US House of Representatives ‘where in the Constitution it authorizes the federal government to regulate the delivery of health care’. The congressman’s answer encapsulates what I argue is the prevailing ‘Washington attitude’: ‘There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do’. To this the congressman added: ‘How about [you] show me where in the Constitution it prohibits the federal government from doing this’ (Napolitano, 2009). The ‘Washington attitude’ finds expression in two related ideas and impulses. First, the Congress is free to tax, spend, borrow and regulate as it sees fit, unencumbered by constitutional or moral constraints. Second, the burgeoning federal enterprise is animated by the politics of ‘wants and needs’, by ‘rights’ defined in opposition to republican self-government, and by a determination to address perceived ‘market failures’ and to compensate for ‘forbidden’ income and wealth inequalities. The recent paroxysm of federal activity – the Troubled Asset Relief Program, the Energy Improvement and Extension Act of 2008, the Tax Extenders and Alternative Minimum Tax Relief Act of 2008, the American Recovery and Reinvestment Act of 2009, the Omnibus Appropriations Act, 2009, the ‘Cap-and-Trade’ bill and the metastasizing ‘health-care reform’ bills – is not a manifestation of a recent emergence of the ‘Washington attitude’. In fact, the ‘attitude’ is the product of a path-dependent process that has been influenced by a moral and political...