Congress Shall Make No Law…

Conservatives and libertarians have long joked that these first words of the Constitution might well have ended with a period! But, laws are made and judgments about their wisdom are appropriate. Thus, when Senator Harry Reid laid down an interesting bench-mark in the recent financial crisis debate by calling the Republican “Cut, Cap, & Balance” bill “perhaps some of the worst legislation in the history of this country,” we thought a response was needed. Thus, we created a contest asking you whether you thought over our long history, we just might have set an even lower mark. We received many thoughtful answers, ranging from the “nanny regulator” laws to egregious trade protectionist laws to oppressive restrictions on speech to offensive and unjust racial exclusion laws. The result? Reid either didn’t know his legislative history or has a rather different set of values that the rest of us.

Consider some of the suggestions:

  • Nanny regulator laws include seemingly the myriad of small but irritating erosions of our freedoms, the unfortunate result of a misplaced residual Puritanical desire to punish “sin.” (Recall that Puritans were those opposed to oppressive treatment of caged bears, not because of the pain to the animal, but because of the enjoyment of the spectators.) Examples abound — one offered in this contest was the law granting the Consumer Product Safety Commission the power to ban all lead in toys, a law which did nothing to reduce harm to children but did benefit the big toy-makers at the expense of the local craftsman.
  • Trade Protectionist Legislation is unfortunately as American as Apple Pie and we received several suggestions. The most serious example was the Smoot-Hawley Tariff of 1930, a bill that closed America to world markets, exacerbating our own Depression and bringing that horror to the world.
  • Suppression of Political Speech laws have proliferated in recent decades as Americans began to question the growth of the regulatory welfare state and, not surprisingly, statist proponents saw this as unfair. They, after all, were the only legitimate voice of the people [the proletariat?] and, thus, these misleading narratives must be oppressed. Free speech means correct speech, after all. We at CEI have long seen these campaigns as attempts to drive market-friendly voices from the political marketplace. readers pointed to a number of laws seeking to squelch political speech, such as McCain Feingold (the “Bipartisan Campaign Reform Act of 2002”), the Alien and Sedition Acts of 1798, and the Sedition Act of 1918.
  • The Recent Bush/Obama Tsunami of Regulations including Sarbanes-Oxley, the Medicare Prescription Drug, Improvement, and Modernization Act (or “Medicare Plan D”) pushed by Tom Delay, Dodd-Frank and ObamaCare which represent the most massive expansion of regulatory restrictions on the market ever. And finally…
  • Racial Exclusion Laws which suppress both civil and economic liberties. These laws include the various racist immigration and wartime rules of America — the Chinese Exclusion Act of 1882 and the Japanese Internment Act but also the Jim Crow laws seeking to buttress racist policies against the assimilative integrative market forces. They also include the Indian Removal Act of 1830 which seized the lands of the Civilized Five Tribes and the Fugitive Slave Act of 1850, which demanded that all Americans help enforce slavery. All these laws demonstrate the dark side of democracy — the atavism residuals of mankind’s tribal exclusionist past.

Our decision? Not easy — Reid himself, on reflection, probably realized that many laws were far worse (to liberals as well as conservatives) to the Balanced Budget Act. Still, the Fugitive Slave Act, resulting in the horrors of our Civil War and the fleeing of tens of thousands of free people of color to Canada and the bitterness of Reconstruction, seemed to stand out even in this horror story of legislative excess.

Jonah Goldberg of National Review seems to have been the first to proffer this answer. He notes that a law which deprived slaves of personhood, threatened all free men in the North, and used the might of the federal government to coerce all into helping return runaway slaves to a lifetime of forced servitude was surely horrific and worse than a law restraining the spending power of the federal government.