The Constitution of the United States was born as a contract among nine States. Each of the nine States was authorized to join the new union by a convention of “the people” of their State.
In joining the new union, the people of nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The people of the original States understood that the central government would exercise its limited powers for their benefit. Every State subsequently admitted to the union has entered into the same contract with the central government.
The central government has breached its contract with the States by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void.
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 central government has become a destructive cycle of dependency. Elected representatives and non-elected élites 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 central government in the false hope that the next increment will get the job done.
There has been bold talk at times about making the central government smaller and devolving its 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 central government, and the central government’s spending consumes a growing fraction of the nation’s economic output.
To break out of this cycle of addiction, it is necessary to restore the constitutional contract to its original meaning.
THE CONSTITUTIONAL CONTRACT: ITS SCOPE AND PRINCIPLES
The Preamble lists the States’ reasons for entering into the constitutional contract, which are “…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 ends desired, not outcomes promised.
To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government’s authority but also diffuses it by dividing it among the central government’s legislative, executive, and judicial branches.
The Framers knew what we are now only re-learning: A government is a power-hungry beast — even a representative government. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them.
Thus 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 central government. The central government 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 central 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 central government
- rights and privileges of citizens
- a 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 delimited scope of the Constitution.
- The central 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 centrall government or reserved by the States in the creation of the central government.
THE LIMITS OF THE CENTRAL GOVERNMENT’S POWER
The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained in Federalist 33, the Constitution “expressly confines this supremacy to laws made pursuant to the Constitution.”
Thus the authority of the central government — the government formed by the united 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 are meant to limit the central 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 can 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 central government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), the central government’s power rests squarely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of that power is underscored by Amendments IX and X, which can be summarized as follows:
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 to the central government or reserved to the States in the creation of the central government.
THE RISE OF UNCONSTITUTIONAL LAWS AND REGULATIONS
The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional; for example:
- The phrase “promote the general Welfare” in the Preamble refers to a desired result of the adoption of the Constitution. It is not an edict to redistribute income and wealth.
- The phrase “general Welfare” in Article I, Section 8, is meant to place a further limit on the specific powers granted to Congress in the same section of the Constitution. Congress is supposed to exercise those powers for the benefit of all citizens and not for the benefit of the citizens of specific States or regions.
- The power of Congress to tax is granted in Article I, Section 8, to enable Congress to execute its specific powers. This limited power has been aggrandized into a general power of taxation for any purpose, constitutional or unconstitutional.
- The power of Congress “to regulate Commerce … among the several States” — also granted in Article I, Section 8 — is meant to prevent the States from restricting or distorting the terms of trade across their borders, not to grant the central government the unlimited statutory and regulatory authority that it now has, thanks to the Supreme Court.
- In Article I, Section 8, 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” has been distorted out of all recognition. The words “necessary and proper” are meant to apply to the exercise of Congress’s specific powers, not to grant 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” — is meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV has became, instead, an excuse for legislation, executive orders, and judicial decisions that grants special privileges to specific, “protected” groups by curtailing the liberty of those who cannot claim affiliation with one or another of the “protected” groups.
RESTORING THE CONSTITUTIONAL CONTRACT
The constitutional contract is a limited grant of power to the central government, for the following main purposes: 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.
It is clear that the constitutional contract has been breached. It is clear that the Constitution’s promise to “secure the Blessings of Liberty to ourselves and our Posterity” has been blighted.
Desperate times require desperate measures. I suggest that we begin at the beginning, with a new Declaration of Independence, and proceed from there to a new Constitution.
The State of the Union: 2010
The Shape of Things to Come
A Declaration of Independence
A New, New Constitution
Parsing Political Philosophy
The Indivisibility of Economic and Social Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Fascism and the Future of America
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Beware of Libertarian Paternalists
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Mind of a Paternalist
Accountants of the Soul
Rawls Meets Bentham
Is Liberty Possible?
The National Psyche and Foreign Wars
The Commandeered Economy
The Price of Government
Does the CPI Understate Inflation?
Ricardian Equivalence Reconsidered
The Real Burden of Government
The Rahn Curve at Work