In this post, Ace wonders
at what point a system of waivers becomes actually unconstitutional — because anyone not granted a waiver is being burdened by a restrictive and possibly punitive law that others aren’t.
It’s unconstitutional from the start. There’s no legitimate reason to pass a law and then start exempting people. Fix the law or overturn it. Otherwise you have the rule of men, not law. And this is broader than mere waivers. As soon as “general welfare” is subverted into “specific welfare” the Constitution has been subverted.
But it might be useful to separate the Fed’s actions into positive and negative feedback. The Fed has essentially limitless latitude in using negative feedback. Civil War, anyone? Crushing the Axis, then Jim Crow? The Fed can treat states and peoples quite unequally. But note that in these cases the federal government changed “specific welfare”–like whites lording it over blacks–into general welfare.
Those weren’t waivers. If Honest Abe Proclaimed Emancipation for all American blacks, excepting Georgia’s, that would be a waiver. When the DoJ enforces election intimidation laws, excepting Black Panthers, that’s a waiver. Waivers from negative effects or for positive ones are all equally unconstitutional.
The Federal government has authority to kill any treasonous American. That’s negative feedback to the nth degree, and is totally legitimate. Is it infallible? Of course not. Every such federal mistake wastes or ruins innocent lives. It has made many such mistakes.
But the negative feedback function of the U.S. Federal government shaped the greatest nation in human history. What it truly wanted to reduce–want, misery, injustice, genocide–it has reduced, and more than any other secular force, ever.
Then how ’bout that positive feedback? Oh, it steers about as well as an engineer would expect.
It’s inutterably stupid using positive feedback to drive any complex systems. But is it Constitutional? If limited to a one word answer, “no”. Partially that’s because the Founding Fathers were not inutterably stupid. In fact they were the greatest social engineers, ever. Their crowning achievement? A governing system designed around checks and balances–negative feedback–rather than “positives” like Divine Right.
Maybe…it’s a coincidence? No, but our federal chauffeurs are too busy to consider this. Currently they’re yanking the steering wheel back and forth in ever-widening arcs while screaming at us frightened passengers to shut the hell up.
Anyway, positive feedback could only pass Constitutional muster in a most delineated and constrained manner. And even then, only in redressing an injustice that negative feedback has already conked on the head.
Take slavery. Could reparations have been legitimately given to freed slaves? Of course. Can they be given now? Of course not. But how about affirmative action and racial quotas, immediately post-Jim Crow? Ahhh…finally an interesting one.
Yes. They could have been Constitutional. If strictly defined with an absolute sunset date. Ideally, a gradual phaseout into non-existence. I say “ideally” because it models how healing systems actually work. Wheelchair, crutches, leg brace, walking jogging running sprinting. Encouraging blacks to remain in wheelchairs while attaching ankle weights to whites is a perfect way to ensure a permanent performance gap.
And that was your intent, right, Democrats?