You’ll recall that our last section ended with two questions. By way of review, those questions were:
1. Does regulating commerce mean legislating all aspects of the manufacturing, marketing, shipping, and use of all commodities and products?
2. Does having the power to “provide for the…general Welfare” mean that Congress has the authority to directly meet the basic needs of individuals?
It’s likely that your answers to those two questions, whether you know it or not, is an indicator of how you view personal liberty and the appropriate relationship between liberty and government. No matter how you answer those questions, one thing is true: the way they are answered by lawmakers and jurists has a significant impact on your daily life.
We’re going to be working our way through the remaining seven cabinet-level departments that I contend don’t have any clear, legitimate, constitutional authority to exist and/or operate, and we’ll look at them in order of most reasonable to least reasonable. Before we do that, though, let’s do a down-and-dirty analysis of the history of these two questions with regard to legal precedent.
Depending on your level of nerdiness, you may or may not be familiar with the concept of precedence. Here’s my stab at a layman’s description:
Our founding documents outline what we are supposed to be…and how we’re supposed to function…as a nation. As time passes, cases work their way through the lower courts and up to the Supreme Court. The (Supreme) Court makes rulings and drafts decisions that explain the reasons for their rulings. Those rulings, and the corresponding decisions, become what all subsequent cases (at all levels of the lower court system) are supposed to use as a measuring stick when they hear cases that pertain to similar matters. Essentially, it’s the establishment of a process that requires judges to look back at what the previous ruling was…putting those rulings/decisions that we call precedent on, arguably, equal footing with, or maybe even in higher authority than, the U.S. Constitution.
If you’ve seen the movie Multiplicity, or perhaps ever worked with a copy machine, you know that making a copy…of a copy…of a copy…of a copy almost always results in loss of fidelity to the quality of the original. This process, at least as much as any other factor, has contributed to our departure from the standards that were meant to be an integral and perpetual part of how we function.
Folks who favor the principle of “Wait. Stop. Go Back.” as it relates to jurisprudence (the theory and philosophy of law) are those you’d normally hear referred to as “originalists”. Basically somebody operating under this philosophy believes that when interpreting legal questions, one must restrict himself/herself to the specific language in the original documents and pull out of it what its writers meant.
So, when judicial review is done well and rightly, jurists lean on a plain reading of The Constitution and explore the meaning of words and phrases from the time-period to get a handle on what the framers and legislators might have meant by what they codified into law. They take care to determine the language of the time and rule based on those intricacies rather than on our modern understanding of language…because what the authors meant is what the law means.
This is eminently important. The fourth amendment establishes that you have a recognized right to be secure in your papers and effects. How about your email? How about your mobile phone records? In order to rule correctly, we’d have to examine what the framers intended. Of course, the fourth amendment extends to your electronic records. The founders were working to establish a barrier between your personal and private information and the government. A cursory reading of the amendment and the communications and debates among the authors makes this interpretation obvious.
If the kind of review I’m defining feels like a no-brainer, to you, that may be because you haven’t come across folks for whom it doesn’t seem quite so evident.
There is, in fact, a significant proportion of influential deciders and interpreters involved in this process who believe that the purpose of the judiciary is to interpret the case before them in light of the contemporary attitudes and appetites of the American people, above and beyond what the crusty old Constitution might have to say. These folks are referred to as “pragmatists”, and their view is that because it’s a “living document” built to allow for change (which is true when speaking with regard to the amendment process, and not the redefinition of original intentions), their task is to establish precedent that promotes stability or what they believe is in the best interest of the public.
It’s not difficult to see how diametrically opposed these two belief systems are.
An originalist approach to interpretation of the fourth amendment would be to rule on the side of permanent and thorough protection of your freedom from unreasonable search and seizure and the necessity of obtaining a warrant to search your home. Conversely, a pragmatist might rule that, in the interest of maintaining public safety in an increasingly dangerous world, searching the homes of citizens suspected to be planning criminal activity is allowable without a warrant.
Don’t be fooled. It’s not just pragmatists who have bought into the primacy of precedent. Originalists and pragmatists alike have become entirely comfortable with the idea that any current decision needs to be based on previous decisions, to the extent that some law schools don’t teach the Constitution any longer; opting instead for exhaustive study of case-law and understanding how established precedents MUST be the underlying master for those involved in the legal profession.
What does all of that have to do with our two questions? Everything.
With regard to commerce, Article 1, Section 8 states that Congress has the power “...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
This power was granted to Congress specifically because the states were creating trade barriers among themselves that created an economic downturn. So, the framers were simply attempting to establish an economic environment that would create a free-trade zone amongst the states and then vest the authority for international trade agreements in the federal government and not with any single state or group of states. That’s it.
The problem is that no further clarification is provided.
So what really matters is the answer to three questions:
What does “regulate” mean?
What does “Commerce” mean?
What does “among the several States” mean?
We know what the founders were trying to do, but that’s not the view the courts have taken.
By way of written decisions from The Supreme Court, here’s what precedent says:
In Gibbons v. Ogden, The Court held that the “power to regulate commerce extends to every species of commercial intercourse…and acknowledges no limitations.” In this case, they also clarified that Congress can regulate matters internal to a single state if those matters are determined to be intertwined with interstate matters.
Using this kind of precedent as a building block, we’ve come to a point where subsequent courts have ruled that the Commerce Clause (intended to govern INTERstate COMMERCE) actually gives Congress the power to pass legislation that impacts INTRAstate activity…sometimes even noneconomic activity…like the growing of crops, for individual consumption (not for sale) by a local farmer (Wickard v. Filburn).
Overreach much?
To be clear, it’s not that the framers meant for us to exist in a system in which Congress exercises this type and degree of control. It’s just that we live in that system because of the interpretations delivered by the presiding courts. That…is the power of precedent.
In just this one example, you can start to see how making decisions, based on decisions, based on decisions, rather than looking at the original intentions behind the crafting of the enumerated power, that gives Congress the authority to ensure free-trade between the states, has us so far off track that a guy in Ohio who grows, and never attempts to sell, wheat on his own property can be found to be in violation of a federal law. Lunacy!
Forgetting, for a moment, our own interpretation of the Commerce Clause (no matter where you stand on that one issue), you’d have to admit that our friend the natural man/woman, wouldn’t have in mind the notion that the government he/she had agreed to form, to protect citizens’ rights, might someday have the authority to tell him/her how much corn can be grown on a private family farm.
Our second question, relating to “general welfare”, is one that really presses us to pick a side in terms of what we believe (and what Mr. and Ms. Natural Person) government is for. It matters specifically because our founders envisioned a national government that aimed to achieve only those few things we’ve been referring to in our considerations of these questions with great frequency; identify and protect individual rights and liberty and provide for common defense.
Most of us were asked, in some grade-school or junior high school class, to commit the Preamble to the United States Constitution to memory. It’s filled with lofty language likely to invoke in the reader or reciter a sensation of pride:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
We the People! Boom!
It starts with recognizing that the power to do what we’re about to do in this document rests with the people. The Preamble goes on to tell us the reasons that we the people are choosing to establish a government, and each phrase carries this kind of weighty righteousness that, on its face, seems to be something that everybody can understand and buy into.
Don’t freak out…I’m not saying that there’s something wrong with the Preamble. Actually, I like it just the way it is. While that’s true, there is a problem that I need to point out, and it’s all about interpretation…again.
We’re going to be wrapping up this section and moving into examination of those remaining seven departments to which I continue to allude, but before we do that, we have to come to terms with what the framers meant in the Preamble and how it has been interpreted (and in my view, mangled) by the courts.
The phrase that causes the most confusion can be found in both the Preamble and the first enumerated power in Article 1, Section 8…”general Welfare”.
The power to tax is granted to Congress as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
From the outset, some of the biggest names among the founders debated the meaning of general welfare, and it’s no small thing that the general welfare that is referenced in the clause allowing Congress to collect taxes is the “general Welfare of the United States”.
For all the talking points you might hear regarding the manner in which the welfare of individuals is the primary aim of entitlement programs, that’s not at all what the founders had in mind. Their conversations around general welfare focused, squarely, on the notion that Congress would need to be able to raise and spend revenue on things that would benefit the entire body…the entire populace…of the United States.
You’ll recall from earlier sections, that I’ve made the case that a government (not just ours…but any government operating for its rightful purposes) can and should spend money on projects and programs that benefit the whole. I qualified that stance by insisting that each individual citizen should have the ability to make use of or enjoy the benefit without any exclusionary factors. I’m okay with this kind of spending, and in a representative republic, those projects and programs would be voted on (directly or indirectly) and then have their funding sourced according to the parameters I’ve laid out before (I won’t rehash them here).
James Madison argued that the taxation clause only used the phrase “general Welfare” so as not to list all of the kinds of things that were about to be listed in the rest of the enumerated powers!
As he urged Virginia to vote to ratify the Constitution, Madison addressed their concerns that Congress might absorb too much power under the guise of “general Welfare”. He reassured his fellow Virginians by asserting that Congress’s spending must be tied to one of the other enumerated powers, such as funding the military because the “general Welfare” is not a specific grant of power, but rather a reason that justifies the need to collect taxes.
This interpretation was the basis for the Democratic-Republican Party’s ability to maintain a dominant hold on the presidency and Congress from 1800 to 1824, as they sought to maintain power distributed to the States and resist Alexander Hamilton’s vision of a powerful central government.
As it played out, the Court held a fairly originalist view of the General Welfare Clause for the entire history of the United States, up until 1937 when they decided, in Helvering v. Davis, that because the elderly population of the United States was becoming increasingly dependent on support that it couldn’t provide for itself, Congress had taken action (in the Social Security Act) that fell under its authority to provide for the general welfare. This stood in direct opposition to the intention of the clause and the explanation provided by Madison…which had led to the ratification of the Constitution.
The pragmatist view eventually won-out, and the Court endorsed an interpretation that leaned into what you might call “activist” territory…allowing congress to take action it wasn’t given the authority to take, and firmly establishing a baseline future courts would be bound to reference and even uphold.
Fast forward a bit to 1987 and South Dakota v. Dole. In this case, we see that Congress, barred from establishing a national minimum age to drink alcohol, vows to withhold federal funding from states that choose a minimum age below 21. In its decision, the Court expresses understanding that Congress is using an end-around to punish (through its spending power) a state that doesn’t give-in to the wishes of the federal government.
The use of precedent, and the manner in which the conclusions the court has come to regarding Congress regulating commerce and acting on behalf of the general welfare, has worked to create an environment where the reach of the federal government (in terms of the how deeply it can impact the lives of everyday citizens and businesses), is virtually limitless. The result is a society in which the only constraint on Congress is the willingness of voters to pay attention, stay informed, and vote-out representatives who go too far.
That is not how the system was designed. The constraints intended by the enumerated powers are supposed to work on behalf of the people to ensure that government doesn’t get out of control. The system itself was supposed to act as a countermeasure rather than forcing voters to constantly work to constrain the government.
In our next section, we’ll consider whether or not that out-of-control-ness is evident in the creation and perpetuation of those remaining seven departments.
Stick around!