Combating Constitutional Cancer

Rhetoric about an end to “big government” is clearly just that, rhetoric. The federal government remains able and more than willing to intrude into the business of the States and the lives of the people. Because of the cancerous growth of big government, whatever liberty and prosperity we enjoy is a pale shadow of the ideals and promises of the Declaration of Independence and Constitution.

Some of the cancer can be excised simply by repealing two Twentieth-Century amendments to the Constitution. Anything approaching a cure will require delicate surgery to the text of the Constitution, to preserve its spirit while making its meaning clearer and thus more difficult to abrogate in future generations.

Promises Blighted

James Madison and Alexander Hamilton — who with John Jay propounded the new Constitution in The Federalist Papers — would be chagrined by the present state of federalism:

“It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities, ” wrote Hamilton in Number 17. He wrote not idly, for he said again in Number 31 that “there is greater probability of encroachments by the members upon the federal head than by the federal head upon the members.”

Madison took up the refrain in Number 45:

The State governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predeliction and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

He continued in Number 45:

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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

And he concluded Number 46 by saying that

the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States as they are indispensably necessary to accomplish the purposes of the Union….

The ironies are great, and bitter.

And so it is that the authors of the Declaration of Independence, if they were writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list could rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

Two Causes and a Partial Cure

Although it flared sporadically in the Nineteenth Century, the cancer of federal statism spread virulently in the Twentieth Century, feeding on misplaced faith in the federal government and distorted readings of the Constitution. (See Restoring the Constitutional Contract for a detailed analysis.) The cancer spread all the more rapidly because Amendments XVI and XVII — both ratified in 1913 — destroyed two vital constitutional anti-bodies.

Amendment XVI enabled the federal government to tax incomes, that is, to feed directly on the nation’s life-blood. Per-capita federal receipts, in dollars of constant purchasing power, grew about 1.5 times between the abolition of the Civil War income tax and the ratification of Amendment XVI. Since the ratification of Amendment XVI, per-capita, constant-dollar federal receipts have grown more than 200 times. The absolute power to tax is absolutely addictive.

Amendment XVII eliminated an important check on federal power by requiring the direct election of Senators instead of their appointment by State legislatures. Before Amendment XVII, Senators were more tightly bound to the interests of their respective States and thus more likely to resist encroachments on the States’ constitutional prerogatives. And because Senators were further removed than Representatives from the passions of the day, they were better able to resist legislative fads and follies.

Clearly, the passions of the day were too much even for the Senators who collaborated in the passage of Amendments XVI and XVII. (A lesson here is that the Constitution should be amended to make it more difficult to amend.)

In any event, the prescription for Amendments XVI and XVII is simple: Excise them from the constitutional body by repealing them.

Radical Surgery Required

But we mustn’t stop there, for the constitutional body is riddled with a more virulent cancer, namely, the blatantly unconstitutional and extra-constitutional aggrandizement of federal power that has persisted for generations. This insidious malignancy has taken root and spread in spite of the language of the Constitution and the intentions of the Framers, and with the complicity of Congress and the courts. (Again, see Restoring the Constitutional Contract for a detailed analysis of the Framers’ intentions and the bases of federal aggrandizement.)

The cure — if there is a cure — will require radical surgery: revising the Constitution to preserve its spirit while sharpening its meaning and making it more difficult to abrogate. A Restored Constitutional Contract offers such a revision. Article V of the Constitution tells us how to proceed:

The Congress,…on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which,…shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress….

The way would be tortuous and treacherous, but so was the the way to the Constitution that we have nearly lost to federal aggrandizement. Let us begin before it is too late.