In the 2000s, we declared war on terrorism. Terrorism still exists today.

In the 1980s, we declared war on drugs. Drugs still exist today.

In the 1960s, we declared war on poverty. Poverty still exists today.

In the 1940s, we declared war on Germany and Japan. Germany and Japan still exist today.

Randy Barnett has an interesting piece on the “double deference” effect, where laws of dubious constitutionality flourish because courts presume all duly enacted statutes to be constitutional, whether enacted for a legitimate constitutional reason or not, while legislators presume that anything the courts will let them get away with is constitutional. Of course this video from Phil Hare (D(umbass)-IL) makes the point better than he or I ever could:

Some of Barnett’s readers question whether this particular Representative is representative, his formal title notwithstanding. My sense is that he is indeed atypical, but only a Kinsley gaffe sort of way. After all, it’s not as though his colleagues who also voted for Obamacare came back with any strong constitutional arguments that Hare himself had simply missed. No one on that side of the fence seems to care about the constitutionality of this bill, only that there was a big fight between Democrats on the Hill and the American people, and doggone it, “we won!” Not that Republicans are above supporting politically expedient bills of dubious constitutionality, either, but that only strengthens the point that the presumption of constitutionality is likely misplaced.

Prof. Barnett would replace the presumption of constitutionality with an effective presumption of unconstitutionality, albeit one he dresses up with a nicer-sounding name, “presumption of liberty.” That makes about as much sense to me as getting rid of the old policy of blacks riding on the back of the bus and replacing it with a new policy requiring blacks to ride at the front of the bus. I’d argue instead for a “presumption of federalism,” where we put the burden of proof on the party making the substantive claim, one way or the other, under the Constitution. Generally, when we ask whether a federal statute is “constitutional,” we are really asking one of two distinct questions:

1. Does a part of the Constitution generally authorize this?
2. Does a part of the Constitution specifically forbid this?

If it were up to me, the presumptive answer to both questions would be “no,” except that we’d never reach Question 2 at all unless the answer to Question 1 happened to be “yes.” If, for example, Congress were to pass a statute making it a crime to transmit a statement across state lines that criticizes any article of commerce that is manufactured in one state but sold in another, that statute would easily pass muster #1 under even the narrowest reading of the Commerce Clause, but it would then be struck down under #2 because of the First Amendment. By contrast, if ObamaCare were to fail under #1 (as I suspect it might, though I can’t pretend to know), it would set no precedent one way or the other as to how it would have fared under #2 (and therefore, how any state equivalent like RomneyCare will fare if challenged in future cases).

While this approach may sound on the surface like splitting the baby, I think in actuality it is more like surgically separating Siamese twins. Once both questions are framed the right way – Does the constitution do X? – it seems fitting that the default answer to both questions ought to be the same. It would also have the pleasant side effect of having the courts afford the least deference to the parts of the Constitution Congress and the electorate care the least about. What say you?