Constitution 101

In a recent op-ed, entitled The Bitter Fruit of an Unconstitutional Bailout, Judge Andrew Napolitano analyzed the constitutionality of the current bail-outs—or, as they are called by the more progressive among us, the “economic recovery” plan. The judge’s commentary was concise and well-reasoned, and touched on several key constitutional points. The remarks of many who responded to the judge’s explanation, on the other hand, indicate an appalling lack of knowledge as to what powers have been delegated to the three branches of the federal government. In this, the second in our Constitution 101 series, we examine the powers vested in the United States Congress.

Article I of the United States Constitution establishes the Congress and vests in it the legislative powers delegated by the states. It goes on to describe things such as the composition of each house, how members shall be elected, and the method of passing bills, to name a few. The real meat of this article, though, is found in Section 8, wherein the powers delegated to Congress are enumerated. In the list that follows, where possible, the text has been reduced to its simplest form (the entire list, in the original language, can be found here). Congress has the power to:

1. Lay and collect taxes, duties, imposts, and excises, provided they are uniform throughout the United States.
2. Borrow money.
3. Regulate commerce with foreign countries, among the states, and with Indian tribes.
4. Establish rules for naturalization.
5. Establish uniform bankruptcy laws throughout the United States.
6. Coin money and regulate its value, as well as the value of foreign coin, and set the standard for weights and measures.
7. Provide punishment for counterfeiting US coins and securities.
8. Establish post offices and post roads.
9. Securing, for limited times, to authors and inventors exclusive right to their writings and inventions.
10. Create courts inferior to the Supreme Court.
11. Define and punish piracy and felonies committed at sea, and offenses against the laws of nations.
12. Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.
13. Raise and support armies.
14. Provide and maintain a navy.
15. Make rules for the government and regulation of land and naval forces.
16. Provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.
17. Provide for organizing, arming and disciplining the militia, and for governing those that are in the employ of the United States, reserving to the states the appointment of officers and the authority of training the militia according to the discipline prescribed by Congress.
18. Exercise exclusive legislation over the District of Columbia, and all other places purchased from states for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.
19. Make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the federal government or any department or officer thereof.

It is immediately clear that this is not a general grant of power, but a narrow list of powers that places finite limits on Congress. Of importance here is the fact that, in general, where the law expresses an exclusive list of options (in this case, powers), all others are proscribed. As Alexander Hamilton asserts in Federalist #32, “But as the plan of the [constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.” Without doubt, the framers understood the effect this section would have on congressional power, which should make clear their intent. Moreover, the lack of any real ambiguity in the language serves to substantiate that it means what it says.

The limits on congressional powers are complicated by the interpretation of the language used in the clauses themselves. At first read, it seems obvious what each clause says, but where multiple definitions exist for words, the meaning of a clause is dependent on the reader’s perspective—and has certainly colored the courts’ interpretations. Given that Section 8 describes such a short list of congressional powers, it defies belief to suggest that the broadest possible definition of words should be used to interpret the extent of those powers. To define the words too broadly invites abuses that would open the door to an entire universe of options, turning limits into a grant of absolute power.

In large part, the obscene expansion of congressional power has relied on the abuse of three clauses: the “general welfare” clause, the “commerce” clause, and the “necessary and proper” clause. The list of abuses could fill an entire section of the local library so, for the sake of brevity, we will limit our discussion to just a few.

Abuses of the general welfare clause should be self-evident—because it doesn’t exist, at least not in the way it is generally understood. The preamble is the introduction to the Constitution, its statement of purpose, and it does, indeed, reference the promotion of the general welfare; unfortunately, as an introductory statement, the preamble does not carry the force of law—though many, in invoking the general welfare clause, are referring to this. The only other reference to the general welfare, and one which does have force of law, is found in Article I, Section 8. The full text of that clause (as opposed to the short version, shown above) reads:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

Key to the misinterpretation of this clause is to pass over the word “for.” The omission of that one little word inarguably changes the meaning of the clause, because there can be no doubt that providing for something is a world apart from providing it. In this case, the text does not state that Congress shall provide the general welfare (nor does it provide the common defense); rather, it provides the means by which it can be provided. In other words, “So that Congress can pay for the things it is otherwise empowered to do, it may lay and collect taxes …”.

Another factor that seems to be roundly misunderstood is that Congress provides for the general welfare of the United States. It does not provide for that of, say, the southern states, the state of Idaho, or the city Denver, though it is often misconstrued to mean precisely that. A simple substitution should put that to rest. At the time the Constitution was drafted, the word “union” was interchangeable with the phrase “United States” (it still is). Indeed, the use of both is seen throughout. Substituting “union” for “United States” makes clear that Congress’s power is to provide for the general welfare of the entity known as the United States, not its component parts.

Bizarre interpretations of the commerce clause have also contributed significantly to the expansion of congressional powers. The commerce clause makes plain Congress’s power to regulate commerce among, or between, the states, which should also make manifestly apparent that its power does not extend to commercial activity of a purely local nature (i.e., confined to a single state). That glaring limitation has not restrained Congress from extending its reach into virtually every aspect of human activity, regardless of its source. A couple of very interesting cases brought before the Supreme Court illustrate just how far-reaching congressional power has become. The first, Wickard v. Filburn (317 US 111), challenged the Agricultural Adjustment Act of 1938, which empowered Congress to limit a farmer’s production of wheat, even when the wheat was produced for consumption on his own farm; the farmer lost. The second, United States v. Lopez (514 US 549), challenged the Gun Free School Zones Act of 1990, by which Congress, under the commerce clause, declared it a federal offense “for any individual knowingly to possess a firearm at a place that individual knows, or has reasonable cause to believe, is a school zone.” The convoluted logic the government employed to justify its position is almost comical. Fortunately, in this case, the government lost.

The foregoing examples illustrate just a few of the numerous contortions applied to the language of the Constitution that have allowed Congress to claim for itself many of the powers reserved to the states. Unless and until the states, and the people thereof, demonstrate an awareness of this threat to their sovereignty, there is little to stop a further reduction in the rights of both.

This entry was posted on Sunday, May 17th, 2009 at 20:48 and is filed under Constitution 101. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.