The Constitution created the United States government and established the foundational law that governs it. At its heart is Article I, Section 8, precisely because all federal law (aside from that in the Constitution itself) originates in legislation enacted by Congress, and this section of the Constitution describes the matters upon which Congress may legislate. And it is here that the problems begin.
Although the Constitution is a static document, in that it remains unchanged unless and until it is formally amended, throughout history, it has been subject to many and varied interpretations, interpretations that have effectively altered the accepted understanding of what the actual text clearly says. As an example, consider that most people today believe the general welfare clause is the basis for numerous entitlement programs, all aimed at ensuring the well-being of each and every individual citizen. Unfortunately, that belief is unfounded, since, at the time the Constitution was written, it was clearly understood that the federal government’s responsibility was to secure the well-being of the union, not the individual.
The commerce clause is similarly misinterpreted and misunderstood, so much so that Congress now claims virtually limitless power because its “sweeping commerce power” touches on nearly every aspect of human activity. Yet, the original understanding of that clause was described by James Madison in his 1828 letter on tariffs, in which he wrote that the power to regulate trade:
… embraces the object of encouraging by duties, restrictions, and prohibitions, the manufactures and products of the country. And the affirmative must be inferred from the following considerations: –
1. The meaning of the phrase “to regulate trade” must be sought in the general use of it; in other words, in the objects to which the power was generally understood to be applicable when the phrase was inserted in the Constitution.
2. The power has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named. [emphasis added]
3. This has been particularly the case with Great Britain, whose commercial vocabulary is the parent of ours. A primary object of her commercial regulations is well known to have been, the protection and encouragement of her manufactures.
It is evident from this that Madison considered the commerce clause, rather than granting an expansive power to Congress, instead limited it simply to promoting and protecting trade, affirming yet again that the Constitution created a government of limited powers. Those powers have since “evolved” to the extent that Congress today regulates everything, from the force of the water in a shower head to the amount of water a toilet may use per flush. It requires that all citizens, as a condition of lawful residence, purchase health insurance from a company that will, itself, be heavily regulated by government. And, if certain of the provisions in the much-touted climate change bill about to be introduced make it through, it will be necessary for home owners to obtain federal approval before they will be permitted to sell their own homes. Interestingly, this last, if passed into law, is, even under modern interpretations, entirely unconstitutional, because it will regulate commerce of an entirely local nature.
These perversions exist–and persist–because many believe that the Constitution evolves, that it is a “living, breathing” document whose meaning simply changes–without so much as an alteration to the text or, more appropriately, an amendment–as society matures. While the Constitution “lives and breathes” through the amendment process, for it–or any law–to be consistently applied and enforced, it must be read using the words as they were commonly understood at the time the law was enacted.
As ratified, the language in the Constitution can easily be seen as restrictive in nature. And why not? After all, the Framers had all been parties to the revolution. Is it even conceivable, then, that they would turn around, straight away, and create the very same sort of government they strove so hard and long to throw off? They understood that their creation was a loose federation of nation-states, in which those states provisionally vested certain of their sovereign powers in a federal government to exercise on their behalf, retaining the rest to themselves. Indeed, in selling the Constitution to the people of New York, Alexander Hamilton, writing in Federalist #32, said, “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.”
If that weren’t enough, the 10th Amendment carves in stone that Congress, along with the entirety of the federal government, is limited to executing only those powers specifically enumerated. Here again, though, interpretation has corrupted understanding. In deciding McCulloch v. Maryland (17 USC 316), the Supreme Court opined that, “The reservation in the 10th amendment to the constitution, of ‘powers not delegated to the United States,’ is not confined to powers not expressly delegated,” in the process declaring that Congress is endowed with wholly unspecified, “implied” powers. The opinion was based largely on the fact that, whereas the Articles of Confederation spoke of powers expressly delegated to Congress, the 10th Amendment did not. The opinion also flatly ignores one simple fact, that where the law expresses an exclusive list of options (in this case, powers), all others are proscribed. Moreover, it corrupts the meaning of the “necessary and proper” clause, which states very specifically that Congress shall “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” again with the understanding that those powers were very narrow in scope.
One of the most problematic issues with Constitutional interpretation is who is doing the interpreting. One oft-spoken belief is that the Constitution means whatever the Supreme Court says it does (left unsaid is the apparent belief that Supreme Court decisions are somehow, like the Pope’s, infallible). Nothing could be further from the truth, and the Supreme Court has often gotten it wrong. More importantly, however, is that, while it is charged with deciding the constitutionality of law relative to the Constitution, the same is not true of the Constitution itself. That was a power the Court took for itself in deciding Marbury v. Madison (5 USC 137)–though the Marshall court did describe the limited government established by the Constitution:
This original and supreme will [of the people] organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? [emphasis added] The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
The states, in allowing Marbury to stand, made an error of stunning proportions. The federal government, neither a party to the compact between the states nor a signatory to the Constitution, took from the states the power to decide the meaning of the Constitution. Surely, anyone can see the potential conflicts that arise from permitting the object of legal restraints the opportunity to define the restraints themselves.
Finally, if there can be any doubt that Congress’s claim to vast, nebulous powers is a fallacy, consider that many states objected to the general welfare clause, among others, because they realized that it would be subject to interpretation that could result in dangerous increases in the power wielded by those in government. James Madison, one of the principle drafters of the Constitution, put those fears to rest in Federalist #41:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.” But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.
And there you have it. If Congress’s powers were to be unlimited, Article I, Section 8, could be limited simply to the opening clause. The fact that it is followed by “a recital of particulars” makes clear that those powers are not as vast as is now believed.