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Marco Rubio’s Eleventh Right
It will take more than a constitutional amendment to restore limited government.


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On Tuesday morning, Marco Rubio unveiled what he hopes will be America’s 28th constitutional amendment. “If passed by Congress and ratified by the states,” the senator declared, the revision would render it illegal for the federal government to “force citizens to purchase goods or services at the risk of being hit with a tax penalty.” Thus, the People would “reassert constitutionally limited government” in the United States.

Rubio’s amendment is a transparent attempt to repeal Obamacare by the highest means possible. But, more than that, it would serve as a wider prophylactic, contrived to slow the damage that last year’s National Federation of Independent Business v. Sebelius decision piled on top of 80-odd years of expansionist jurisprudence. Although his project is futile, Rubio’s instinct is admirable.

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Nevertheless, that it is necessary for advocates of limited government to propose such an explicit measure at all is inordinately depressing, a bleak indication of just how far down the road toward constitutional hollowness the United States has come. Were Rubio’s amendment to be ratified, it would become the eleventh provision that specifically prohibits the federal government from doing something that it was never allowed to do in the first place, and the first enumerated admission that the constitution’s essential logic has been unraveled by history.

Our modern assumptions about the nature of the Constitution are distressingly topsy-turvy. Here, Alexander Hamilton, who argued determinately that it made no rational sense to add an inventory of rights to a charter of limited power, has proven typically prescient. By 2013, alas, the Bill of Rights has become what Hamilton’s Federalist contingent feared it would: an exhaustive list that outlines the few areas from which government action is barred. Rubio’s contribution would add to this list, certainly. But it would not “reassert constitutionally limited government.” No amendment can do that.

The argument that liberty would be most efficaciously preserved if certain basic rights were expressly protected was made by a powerful Anti-Federalist contingent that included Samuel Bryan, Robert Yates, George Clinton, Patrick Henry, the “Federal Farmer,” and the colonies of Massachusetts, New Hampshire, Virginia, and New York. This awkward cadre held that a Bill of Rights was imperative if the implied powers of the proposed federal government were to remain in check. It made the establishment of such a check the price of its support, and in doing so, the group rejected — or at least weakened — the virtuous assumption that pre-existing British common law, and the rights of free Englishmen, would survive the installation of the new Constitution intact.

For reasons both genuine and guileful, the Anti-Federalists’ request was fiercely opposed by the Federalist contingent, which considered the addition of such prohibitions to the Constitution to be “unnecessary,” “imprudent,” and even “dangerous.” In Federalist No. 84, Alexander Hamilton charged that advocates of a charter of unalienable rights were stuck in an Old World mindset. Enumerated rights, he wrote, were “stipulations between kings and their subjects,” they were “abridgements of prerogative in favor of privilege,” and they were “reservations of rights not surrendered.” As such they had no place in the new republic, for they had “no application to constitutions professedly founded upon the power of the people.” The people did not need assurance of their inalienable rights, so his argument went, as there was no provision for their removal. Hamilton assured the Constitution’s opponents that “here . . . the people surrender nothing; and as they retain every thing they have no need of particular reservations.”



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