In this post, I will explain how, in an ideal world, it would not matter to us so much as it does now who becomes our next president. The Founding Fathers asked an important question during the formation of the Constitution: How much power should a centralized federal government have? Most of the text of the Constitution deals, at least indirectly, with this central issue. The colonists were tired of government fiat from overseas, and wanted to govern their own affairs. None of them wanted another king in Philadelphia.
Thus, one central issue of the Constitution was define how much power the Federal government should have. Let’s put this another way: Each state already had, under the Articles of Confederation, almost unrestrained legislative authority within their own state boundaries. The question was, “How much of this authority should we delegate to the Federal government?” They were reluctant to delegate any significant powers to a centralized authority, because it is common knowledge that local legislatures govern best. Just as a Parliament or King in England should have little or no say in American affairs, they presumed that a man in Philadelphia should have little say in what happens in Maine. Their goal was not a uniform government throughout the states; Ron Paul explains, “The Founding Fathers did not intend for every American neighborhood to be exactly the same—a totalitarian impulse if there ever was one.”1
Thus, they developed a list of enumerated powers—a list of the particular powers that they would delegate to a central authority. We can find an almost unanimous support among the Founding Fathers for the idea that the Federal government’s powers are limited to those listed among the enumerated powers of Congress. This is expected, considering that “common law held such lists of powers to be exhaustive.”1 The oft-called “Father of the Constitution,” James Madison, said, “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”1
This, however, is exactly how many people today treat the Federal government; they believe that the Federal government can do anything that does not violate the Bill of Rights. They see the government as “indefinite,” “subject to particular exceptions.” However, this is exactly what our Founding Fathers feared would happen, and to prevent it they added the 10th amendment:
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.
Notice the rhetoric: the powers of Congress are delegated powers, with the rest being reserved to the states. This is the rhetoric that was used to defend and frame the document. Thomas Jefferson, though not present at the convention, but who was well acquainted with its development, said, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” Many opposed the addition of a Bill of Rights to the Constitution. Why? Because, they claimed, why should we forbid the government from certain activities, if such activities were never authorized in the first place? They feared that by adding a Bill of Rights, people would interpret it as the only limitation of the federal government, rather than just as a precautionary measure.
Alexander Hamilton was at the convention, and is on record as the most vocal advocate for a strong centralized government. However, even he said, “This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” If anyone would have been against limiting the Federal government, it would have been him. Yet he freely emphasizes that the enumerated powers represent the limit of congressional power. These are the only issues over which the states were going to relinquish control. Ron Paul says it well:
The whole point of the American Revolution was to vindicate the principle of local self-government. The British had denied that the colonial legislatures were exclusively endowed with the power to make political decisions for their peoples. The colonists, on the other hand, insisted that they would be governed only by their elected representatives. That remained the operative principle in the Articles of Confederation as well as the Constitution: local legislatures are presumed to hold authority except in areas in which they have expressly given up that authority.1
Many people object that the words “general welfare” allow the Federal government much more lee-way in interpreting its legislative powers. James Madison responds:
With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.1
In other words, the list of enumerated powers are an elaboration of the actions Congress may take in order to provide for the common welfare. Some were not convinced that the general welfare clause would not be interpreted too broadly. “Patrick Henry raised precisely this concern,” says Ron Paul, “as the Constitution was being debated in Virginia: wasn’t the ‘general welfare’ a dangerously open-ended phrase that would permit the federal government to do whatever it wanted, since government officials could blandly claim that all its measures were intended to promote the general welfare?”1 A valid concern from a colonial population that feared a strong central government. Paul explains that the answer given by those advocating the Constitution was “no, ‘general welfare’ did not and could not have such a broad meaning.”1
However, despite such reassurances from the Constitutional convention, it does seem to be interpreted that way today. Such should not be the case. I suppose just quoting James Madison isn’t enough to be persuasive on this issue. Let’s consider, though, the classic slippery slope argument: if we interpret the general welfare clause loosely, rather than as elaborated in the following list, we have lost the simple safe-guard against the an excess of power in the centralized government. Since the Constitution was designed to limit Congressional power, any interpretation that fails to sustain that limit clearly does violence to the purpose of the Constitution.
Common sense, right? Why have an enumerated list, if Congress could do whatever it wanted, regardless? Why have the extra safe-guard of the 10th amendment, if we were never meant to have a limited central government? If we interpret the Constitution loosely, the document becomes neutered of its role in protecting the citizens and legislatures of the various states from the encroachment of an ever-growing federal government. This should be reason enough to interpret the enumerated powers as the strict limit of the authority of the federal government. The same applies for the powers of the executive branch as well.
The Living Constitution
I fully agree that the Constitution should change and evolve to meet the needs of the modern day. Those who feel that the enumerated powers listed in the Constitution are too restricted are not without hope. There is a mechanism designed by our Founding Fathers for adapting the Constitution to our modern era: constitutional amendment. For example, I am grateful that amendments to the Constitution have allowed women to vote, ended slavery, etc.
However, many people who advocate a “living” constitution do not mean adaption to present circumstances via amendment; instead, they believe that we should feel free to reinterpret what is already there to suit our present needs. What is the problem with this? Ron Paul explains:
If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?
A “living” Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they’ve simply misunderstood: the Constitution, you see, has merely evolved with the times. …
That’s why on this issue I agree with historian Kevin Gutzman, who says that those who would give us a ‘living’ Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us against the encroachment of government power.1
Unless we make changes to the Constitution via amendment, we don’t have a living, evolving Constitution; we have a dead one, since it becomes useless to us. Words that can mean anything really mean nothing. In other words, let us adapt our Constitution to our present circumstances using its own built-in mechanisms. If we want the federal government to be involved in welfare; if we want the president to have power to engage in warfare; if we want the congress to have complete power over the free market, lets amend the Constitution and make it happen. I will oppose any such amendment; however, at least these activities will then be legal.
Consider how upset you would be if you authorized your legal agent to do a, b, and c on your behalf, and no more, and he goes and does a, b, c, x, y, z on your behalf, and claims that he deviated from the original contract because he decided it was in your best interest? Now, you may agree that x, y, and z were good things; however, should he not have come to you first, and asked for an increase in his authority? Should he not have asked for a revision of the original contract that delegated to him his powers prior to his actions?
I believe that if we understood our Constitution, and if both our presidential candidates understood our Constitution, we wouldn’t be all that concerned about the upcoming election. It wouldn’t really matter to us as much as it does now. It is because the President and Congress have stolen massive amounts of power from the states and from the people that we are so concerned about who holds that power. Let me conclude with a few more words from Ron Paul:
If our government were scrupulously faithful to the Constitution, we would not need to be especially concerned when a person who represents a philosophy different from our own takes political office. Our Constitution delegates relatively few tasks to the federal government, so it should almost be a matter of indifference who is elected. We wouldn’t have to worry that a social policy of which we disapproved would be imposed on our neighborhood at the whim of a new president and his court appointees, or that more of our money would be stolen to fund yet another government boondoggle. And we would also be spared the spectacle of countless American individuals and corporations frantically donating to candidates for political office during election years in order to reserve a place on the federal gravy train if their favorite should win.1
Isn’t this wonderful? Wouldn’t this relieve the heavy burden that now accompanies elections to federal office? All the important debates would take place on a local, state level. Isn’t that fantastic? We can exert more of an influence on state politics. It will be easier to make changes to policies we dislike. And, if all else fails, we can move to a different state. This is a much better situation than what we have at present, where important debates are had at a national level, where the outcomes affect everyone, and by candidates who will have no Constitutional authority to enforce the promises they make. I agree with Ron Paul that the Constitution is far from perfect. However, he says,
Few human contrivances are. But it is a pretty good one, I think, and it defines and limits the scope of government. When we get into the habit of disregarding it or—what is the same things—interpreting key phrases so broadly as to allow the federal government to do whatever it wants, we do so at our peril. We will wind up with a situation like the one we face right now, that few Americans are happy with.1
Ron Paul, The Revolution: A Manifesto (New York: Grand Central Publishing).
Filed under: Politics | Tagged: Alexander Hamilton, Bill of Rights, Constitutional amendment, enumerated powers, federalism, Founding Fathers, General Welfare, interpretation, James Madison, Kevin Gutzman, Law, Living Constitution, local self-government, Patrick Henry, Ron Paul, U.S. Congress, U.S. Constitution, U.S. President |