Founded in 1991, the Republican Liberty Caucus works to advance the principles of limited government, free markets and individual liberty within the Republican Party.

by Dan Sheill

The do-gooders in Congress continue to be drunk with power. At this point there is basically no limit to what they think they can legislate.

Texting while driving is extremely reckless (although I myself admittedly talk on the cell phone behind the wheel frequently).

But, if this issue should be legislated at all, it should be handled by the states, which unlike the federal government, are vested with police powers.

What are police powers?

The ability to regulate the “health, safety, morals, and general welfare” of the people.

So as much as we libertarians may detest laws against sodomy laws, smoking in public places, or the requirement to wear your seat belt while driving, the Tenth Amendment clearly states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, Congress only has those powers specifically enumerated in Article I, Section 8 of the U.S. Constitution. Even the socialists who taught me at the University of Michigan were willing to admit that.

But nonetheless Congress still appears hell bent on legislating everything, so how could this be?

There are two enumerated powers which Congress has abused beyond recognition since the 1930s: the commerce clause, and the spending clause, which is the one they are currently abusing to regulate “texting”.

The spending clause is a good example of why all of this state sovereignty talk is full of hot air. As much as the states want to assert their independence at times, they easily succumb to the seduction of federal dollars thrown their way. In exchange for the money, they change their laws to Congress’ liking, and, like a deal made with the devil, abdicate whatever autonomy they may have had left.

But this is the truly scary thing: Congress is filled with lawyers, but few of them understand the Constitution, particularly the fact that it is a document which grants limited powers to the federal government.

A good example of this occurred when Vice President Joe Biden was still a Senator. Then-Sen. Biden drafted the Violence Against Women Act of 1994. As much as he boasted about this on the campaign trial last fall, he failed to mention that part of the Act were held unconstitutional by the US Supreme Court in United States v. Morrison (2000) on federalism grounds. And to think that this guy taught constitutional law!

As Judge Andrew Napolitano pointed out in his masterpiece “Constitution in Exile”, there is a difference between natural law, and mere positive laws — which are concocted for any apparent reason, and whose legitimacy is only based on the fact that our government said so.

As exemplified by the texting legislation, the United States has moved so far into the realm of positive law that the Constitution may very well be no longer worth the paper that it was written on.