An Inconvenient Constitution

In the past 75 years, the size of the Federal government has grown from 3% of national income, which it had not surpassed for 150 years, since the founding of our nation, to consistently over 20% of national income, and growing.

So what was it that opened the floodgates to the massive federal overreach and profligate waste and spending that we see today? As FDR began his first term (of four) and began to enact New Deal legislation, the Supreme Court inconveniently ruled that the National Recovery Act, a Federal Minimum Wage Law, and many other pieces of over reaching legislation were unconstitutional. Roosevelt responded by proposing a "court packing" plan that would enable him to appoint five new justices, and dilute the power of the existing judges. Although this effort was defeated, the Supreme Court was bullied in to deciding that that the Labor Relations Act, Social Security Act, and many other acts that were previously ruled unconstitutional, were in fact, constitutional… With the constitution eviscerated and a legal precedent in place to allow legislators to vote into law whatever is needed to buttress their political popularity, growth of the federal government has been awesome and unabated ever since.

The first 10 amendments to the US Constitution, commonly known as the “The Bill of Rights”, were ratified in 1791. The last of these amendments, the 10th, states “The powers not delegated to the US by the court, nor prohibited to it by the states, are reserved to the states respectively, or to the people.” The Constitution goes on to enumerate a handful of specific powers that are granted to the Congress. Among these are providing and maintain a navy, establishing post offices, coining money, borrowing money on behalf of the US, granting patent rights, and declaring war. The list is quite specific, and conspicuously absent from the list is the provision of health care services. In fact, many powers that the federal government has assumed control of do not appear in this list. Nearly all of these assumed powers were usurped by the Federal government, from the states and from the people, between the present and the beginning of the New Deal.

It is worth taking a close look at the Constitution to understand how health Care, home mortgage guarantees, or retiree benefits fall within the purview of enumerated powers. There are two enumerated powers that, after 150 to 200 years of evolution of the English language, do seem a little bit gray. However, even the most perfunctory analysis reveals that any interpretation that justifies such extravagant government services is creative and far reaching at best.

The following two paraphrased clauses appear within the text of the enumerated powers in the Constitution (1) To regulate commerce among the several states (2) to provide for the common defense and general welfare of the United States.

It is mainly these two clauses that have been used to grow the size of the Federal government from 3% of national income to over 20% of national income, to about 25% today.

Why would the authors of the Constitution go to such lengths to enumerate specific powers such as bankruptcy law, establishment of post offices, and patent rights, only to then include a couple of “catch all” clauses that could be interpreted to mean absolutely anything? They wouldn't. Why bother with the 10th amendment if there is an obvious way for legislators to just vote themselves more power? This is not award winning legal analysis here. This is common sense. Creative interpretations of these clauses do not pass the sniff test.

A primary source for interpretation of the U.S. Constitution is the Federalist Papers written by John Jay, James Madison, and Alexander Hamilton. These 85 articles advocated the ratification of the US Constitution. They reveal the intentions of the Constitution’s authors and their vision for how it should be interpreted. Indeed, James Madison is considered “The Father of the Constitution”.

The Federalist Papers address the enumerated powers at length. The clause related to regulating commerce is discussed by James Madison. “A very material object of this power was the relief of the States, from the improper contributions levied upon them by the latter… to load the articles of import and export, during the passage through their jurisdiction, with duties…”. The commerce clause is intended to reduce the friction of commerce between the states, and to prevent trade disputes between states. For example, cotton or tobacco from one state should not be burdened with an import or export tax when it is brought to market in another state. Never was it intended to grant the federal government control of any form of commerce that it desires.

One of the more black-and-white statements in The Federalist Papers is the following: “The powers delegated by the proposed constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite”. The statement captures the spirit and intent of the paper, and of the enumerated powers in the constitution, very concisely. It’s an eye opening statement that reveals how far we have deviated from the intentions of our nation’s founders.

The general welfare clause within the enumerated powers is also addressed very directly, with specific and poignant comments about possible misinterpretations of its meaning. To address the possibility of misinterpretation of the general welfare clause, which was clearly debated as a possibility, Madison states: “it has been urged and echoed that the power amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction”.

The Federalist Papers are a timeless view into the minds of our nation’s founders. It’s full of clear statements of intent and meaning. One of my very favorites is from Madison. It is a statement that both FDR, with his depression mandates, and Rahm Emanuel, with his financial crisis mandates, both resemble. Its relevance today is truly alarming.

“Tyranny may well be apprehended on some favorable emergency, to start up in the same quarter.”