The Constitution and the Role of the Federal Government

The Constitution’s Purpose Perverted

The Constitution of the United States of America is a contract in which the States establish a federal government with clearly delineated powers, for specified purposes: “…to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” These are desired ends, not promised outcomes.

In the constitutional contract, the States cede certain of their own powers and grant limited powers to the federal government. In Section 10 of Article I, for example, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress — creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Constitution, in turn, authorizes the federal government to enact, execute, and adjudicate laws within a limited sphere of authority. The Constitution not only limits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.

The federal government is the creature of the States, not their master. And the creature, like Frankenstein’s monster, has taken on a destructive life of its own.

Beginning at the Beginning: the Terms of the Constitutional Contract

The limited scope of the constitutional contract provides for:

  • primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the federal government. The federal government is not, and was not intended to be, a national government that supersedes the States.)
  • collective obligations of the States, as the united States, and individual obligations of the States to each other
  • structure of the federal government–the three branches, elections and appointments to their offices, and basic legislative procedures
  • powers of the three branches
  • division of powers between the States and federal government
  • rights and privileges of citizens
  • process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

  • The Constitution and constitutional laws are the supreme law of the land, within the clearly limited scope of the Constitution.
  • The federal government has no powers other than those provided by the Constitution.
  • The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

In sum, the constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

Federal Aggrandizement and Its Consequences

But the great national crises of the Twentieth Century — especially the Depression and World War II — fostered the habit of giving illegitimate power (and money) to the federal government. Thus the constitutional contract and the pillars of the Constitution — the States and citizens — have been undermined.

The immense, illegitimate power that has accrued to the federal government cannot be found in the Constitution. It arises from the cumulative effect of generations of laws, regulations, and court rulings — each ostensibly well-meant by its perpetrators

The habit of recourse to the federal government has become a destructive cycle of dependency. Elected representatives and unelected elites have vested unwarranted power in the federal government to deal with problems “we” face — problems the federal government cannot, for the most part, begin to solve and which it demonstrably fails to solve many more times than not. The conditioned response to failure has been to cede more power (and money) to the federal government in the false hope that the next increment will get the job done.

There has been much bold talk in recent times about making the federal government smaller and devolving federal power to the States. The bottom line is that the executive branch still regulates beyond its constitutional license, Congress still passes laws that give unwarranted power to the federal government, and federal spending still consumes about the same fraction of economic output that it did two decades ago.

The Unconstitutional Bases of Federal Aggrandizement

To break out of this cycle of addiction, we must restore the constitutional contract and thus free the States and citizens — especially citizens — to realize their economic, social, and spiritual potential.

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution

…expressly confines this supremacy to laws made pursuant to the Constitution…[Federalist number 33].

Thus the authority of the federal government — that creature of the States — enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.

Moreover, the “checks and balances” in the Constitution limit the federal government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role–as head of the executive branch–the President of the United States must, with specified exceptions, sign acts of Congress before they become law, and may veto acts of Congress–which may, in turn, override his vetoes. >From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The Constitution itself defines the sphere of authority of the federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X; to repeat, in plain words:

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Most such laws and regulations rest on these weak foundations:

  • the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.
  • the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.
  • the authority of Congress

[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8].

The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.

  • the “equal protection” clause of Amendment XIV:

…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.

Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

The Price of Federal Aggrandizement

It is fitting that today’s “liberals” — who invoke unreasoning fear of less government — are the intellectual descendants of Franklin Roosevelt, the architect and progenitor of policies that have eroded civility, stifled initiative, and bled the nation’s wealth. Yes, the federal government — as it has become — incubates incivility, suppresses individual initiative, and brings about more economic distress than it can ever hope to alleviate.

The incivility of racial tension, for example, has been heightened by the affirmative-action policies of the federal government, which favor classes of people because of their race and gender. It is right, and constitutional, for blacks to have the same access to the ballot box as whites. It is wrong, and unconstitutional, for blacks to be favored over whites because of their color.

The tax code that punishes initiative, to take a second example, rests on the presumption that a person who makes more money should pay not only more taxes than a person who makes less money, but pay disproportionately more taxes. Who is to say that Ms. X, who put herself through graduate school, deserves to pay a higher fraction of her income in taxes than Mr. Y, who chose to drop out of high school and pursue a career in the fast-food business?

Finally, the intervention of the federal government is responsible for exacerbating, if not causing, the great economic disasters of the Twentieth Century — including the Great Depression of the 1930s and the double-digit inflation of the late 1970s and early 1980s. The great bull market of 1974 to 1998 will come to an end — if it hasn’t already — regardless of (if not because of) the great god Greenspan. Expecting the federal government to contain and control fundamental economic forces is like expecting a surfer to tame a tsunami.

It becomes increasingly evident that the Framers knew what we have been re-learning in recent years: A government, even a representative government, is a power-hungry beast. More power in the hands of government means less power for individuals.

Restoring the True Constitution: The Only Thing We Have to Fear Is Fear Itself

The constitutional contract has been breached. Only by restoring it and reversing generations of federal encroachment on the rights and powers of the States and people can we “secure the Blessings of Liberty to ourselves and our posterity.”

The Constitution itself contains the restorative remedy:

[O]n the application of the legislatures of two thirds of the several States, [Congress] 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 the conventions in three fourths thereof…

Congress has in hand the requisite number of applications for a constitutional convention but has resisted calling one. If pressed, the leaders of Congress would invoke the specter of the rabble rescinding the Bill of Rights. But what the professional politicians in Congress (and their allies in the executive branch and community of special-interest groups) truly fear is the reassertion by the citizens and States of their constitutional rights and powers.

What would happen? Would “society” disintegrate and incivility reign? Would the rich get richer as the poor get poorer? Would we experience wild swings of prosperity and poverty? To ask these questions is to acquiesce in the “liberal” myth that it is government — in particular, the federal government as it has become — that stands between us and a state of incivility, that enables the skilled and determined to get ahead in our positive-sum economy (your gain is not my loss), and that stands between all of us and the specter of another Great Depression.

We are paying (and paying and paying) dearly for our pact with the devil — the promise of an eternal “free lunch” in exchange for control of our own lives and livelihoods. Do we have the collective guts to tear up the pact and reclaim our liberty? Or, as FDR said, will we be bound by “nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance”?