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Posts Tagged ‘Enumerated Powers’

In this interview from last March, I groused that the Supreme Court – largely thanks to statist Justices appointed by one of America’s worst presidents – basically decided, starting in the 1930s, that it would no longer be bound by the Constitution’s provisions that protect economic liberty.

I’m not a lawyer, much less an expert on the Constitution, but I know how to read.

The Constitution very clearly is a document to constrain rather than enable government. It was designed to produce what I’ve referred to as Madisonian constitutionalism.

When Justices ignore their responsibility to protect our rights, however, they’re basically acting like this satirical image of President Obama.

Let’s look at two very tragic legal cases from that era.

Professor John McGinnis, writing for Law & Liberty, discusses the wretched Supreme Court case that undermined the Constitution’s Contract Clause.

…the Contract Clause…was the most litigated provision of the Federal Constitution in the 19th century, but today it has become a shadow of its former self because the Court has abandoned its original meaning. …The Contract Clause provides: “No State shall… pass any… Law impairing the Obligation of Contracts.” …in The Federalist, Madison argued that the Clause was a “bulwark in favor of… private rights.” …It is designed to protect an important aspect of the rule of law: a prohibition on the government changing specific plans that autonomous individuals have made. …For the 19th and early 20th centuries, the Supreme Court was relatively faithful in interpreting the Clause. In Home Building & Loan Association v. Blaisdell, however, the Court departed from its role as a faithful agent of the Constitution. …influenced by the Depression and the growing discontent with the jurisprudence of substantive due process with which it confused the clear command of the Contract Clause, the Court upheld the law. It is true that times were hard, but as Justice George Sutherland’s dissent noted, legislation protecting debtors against creditors is passed precisely at such times, and yet such legislation was exactly the kind of evil which the Clause was designed to prohibit. The case is striking as an example of one of the most express rejections of originalism. Chief Justice Hughes stated explicitly that the Court was not bound by the original understanding of the Clause.

Writing for FEE, Professors Antony Davies and James Harrigan explain the terrible 1942 decision by the Supreme Court to remove any meaningful restriction on the power of the central government.

They start by pointing out that the 18th Amendment (imposing prohibition) was an example of how to expand the power of government in the proper way.

The Constitution creates a government of enumerated powers, which means the federal government is only authorized to do things that are specifically listed in the Constitution. And that list is relatively short. The list appears in Article One, Section Eight and enumerates the proper objects of congressional legislation.  …Consider the United States’ ill-advised flirtation with Prohibition—which was enacted almost exactly 100 years ago. Nowhere in the Article One, Section Eight powers does one see the authority to “ban the manufacture, transport, or sales of alcohol within the United States.” When Americans decided that they wanted a coast-to-coast ban on alcohol, they amended the Constitution to give the federal government this authority. Fourteen dry years later, Americans came to their senses and revoked this authority by amending the Constitution again.

Alcohol prohibition was a mistake, of course, just like today’s drug prohibition, and the American people went through the proper process of adopting the 21st Amendment (to repeal the 18th Amendment).

Davies and Harrigan then explain that it was about that time that the Supreme Court decided that it would no longer uphold the Constitution’s restrictions on the powers of the central government.

As of 1933, when the 21st Amendment was ratified, Americans still had a constitutionally limited federal government and what Justice Louis Brandeis famously called “laboratories of democracy” in the states. …But who ended up being tasked with deciding what Article One, Section Eight actually meant? Herein lies the wrinkle that enables all manner of constitutional mischief in the United States. The institution that ended up deciding what the federal government is empowered to do is itself a branch of the federal government. And it should come as no surprise that when push comes to shove, the Supreme Court routinely finds in favor of empowering the federal government.

One of the most horrifying examples of judicial failure occurred in 1942.

In 1942, the Supreme Court decided a case, Wickard v. Filburn, in which farmer Roscoe Filburn ran afoul of a federal law that limited how much wheat he was allowed to grow. …A careful reader might, and should, ask where the federal government’s right to legislate the wheat market is to be found—because the word “wheat” is nowhere to be found in the Constitution. …The Agricultural Adjustment Act of 1938 put an upper limit on how much wheat farmers were allowed to grow, which would serve to keep prices high by limiting supply. Roscoe Filburn had grown 12 more acres of wheat than the law allowed. But not only did he not sell the excess wheat outside of his home state, but he also didn’t sell it at all. He used the wheat from those 12 acres to feed his cattle. …yet the Supreme Court found (unanimously) that because Congress had the authority to regulate interstate commerce, Congress also had the authority to prohibit Filburn from growing those 12 acres of wheat for his own use. …Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce. …Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce.

And here’s the result.

A century ago, we amended the Constitution when we wanted the federal government to exercise a new authority—that of banning alcohol. Today, we allow Congress to exercise almost any authority it likes. …We have progressed so far down the path of reinterpreting the Constitution as a document that empowers government, rather than one that limits it… The sad result has been a government nearly limitless in its power.

By the way, the Obamacare case may be as odious as Wickard v. Filburn since it marked another unfortunate expansion of Washington’s ability to control our lives, in violation of the clear language in Article 1, Section 8.

Though I don’t want to be too glum. The good news is that the Supreme Court occasionally does defend economic liberty, as the Wall Street Journal recently opined.

One goal of the U.S. Constitution was to form a union that allowed interstate commerce unencumbered by state protectionism. The Supreme Court reinforced that principle on Wednesday by striking down a two-year residency requirement to get a liquor license in Tennessee. …a business lobby known as Tennessee Wine and Spirits Retailers Association argued that the 21st Amendment that repealed Prohibition also gave the states broad authority to regulate alcohol. The association knows that if people can move to a state and open up liquor stores, it means more potential competition for those who already have licenses. The law is commercial protectionism and thus violates the Constitution’s Commerce Clause, the High Court ruled in Tennessee Wine and Spirits Retailers Assn. v. Thomas. “Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional,” wrote Justice Samuel Alito for a 7-2 majority… the 21st Amendment doesn’t override the rest of the Constitution’s principles. As recently as 2005 (Granholm v. Heald), the Court ruled that New York state couldn’t discriminate against out-of-state wineries.

Some judges resent any protections against government power.

In an article for Reason, Damon Root properly castigates a judge for objecting to the economic liberties guaranteed by the 14th Amendment.

Does the U.S. Constitution protect economic liberty, such as the right to work in an occupation of one’s choosing free from unreasonable government regulation? Pennsylvania Supreme Court Justice David Wecht thinks not. …in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Wecht faulted his colleagues in the majority for their “judicial intrusion into the realm of legislative value judgments” after that court allowed a legal challenge to proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations. …”For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote of Lochner and several related cases. …I would encourage Justice Wecht to read some more legal history. …Rep. John Bingham (R–Ohio)…served as the principal author of Section One of the 14th Amendment… As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.” …even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation… The “right to contract” was of course later secured by the Supreme Court in Lochner.

Let’s close by detouring into the world of fantasy and contemplating how we should amend the Constitution today?

Rory Magraf lists five ideas in a piece for the Foundation for Economic Education, one of which I find especially tempting.

…the conversation always gets the cerebral juices flowing for legal enthusiasts; the idea of amending the US Constitution, something done only twenty-seven times in history, is about as close as one will get to actually sitting among the Founders in Philadelphia. With that in mind, here are some ideas.

The Sixteenth Amendment to the Constitution of the United States is hereby repealed.

In short, abolish the income tax. This is usually a crowd-pleaser among libertarians and probably a handful of Republicans during an election year, but it is also a bit of a challenge, on the same level as chasing the moon. Still, it would be worthwhile to have the conversation.

Since I’m definitely not a fan of the income tax, I certainly endorse this notion.

However, I think we would need much stronger language. The key 1895 case that struck down the income tax was decided by a the narrow margin of 5-4, and that was back when Justices presumably cared more about the Constitution.

I fear that a similar case today would not lead to the right result (which is one of the reasons I’m skeptical of a national sales tax).

In any event, the federal government’s broad power to tax does not translate into a broad power to spend. At least if we care about the Constitution.

And that means much of the federal government is (or, to be more precise, should be) unconsitutional.

P.S. Here’s some of what Thomas Sowell wrote about Wickard v Filburn.

P.P.S. Here’s some of what Walter Williams wrote about the Constitution’s limits of Washington.

P.P.P.S. If you want to read more, the Constitution was designed to protect against majoritarianism and to ensure “negative liberty.”

P.P.P.P.S. Readers may also be interested in this discussion of whether libertarians should prefer Hamilton or Jefferson.

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I wish the Republican Platform was binding.

Too bad it’s meaningless fluff

Why? Because the GOP, for all intents and purposes, has just proposed to eliminate the Department of Education, the Department of Housing and Urban Development, the Department of Energy, the Department of Agriculture, the Department of Transportation, the Department of Health and Human Services, along with a host of other government programs, agencies, and departments.

More specifically, they endorsed the 10th Amendment to the U.S. Constitution, which means they put themselves on record in favor of getting rid of all federal spending and intervention that is inconsistent with the Founding Fathers’ vision of a limited central government.

Here’s some of the story, as reported by The Hill,

All federal spending should be reviewed to ensure powers reserved for the states are not given to the federal government, according to the GOP platform approved Tuesday. The platform language is meant to ensure all federal spending meets the requirements of the 10th amendment, which prohibits state powers from being given to the feds. “We support the review and examination of all federal agencies to eliminate wasteful spending, operational inefficiencies, or abuse of power to determine whether they are performing functions that are better performed by the States,” the platform reads. “These functions, as appropriate, should be returned to the States in accordance with the Tenth Amendment of the United States Constitution.”

For those of you who don’t have your Cato Institute pocket Constitutions handy, here’s what the 10th Amendment says.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, the 10th Amendment is basically a back-up plan to re-emphasize that the federal government was prohibited from exercising power in any area other than what is specified in the enumerated powers section of Article I, Section VIII.

And if you look at those enumerated powers, that pretty much invalidates much of what happens in Washington.

That’s the good news. The bad news is that the Republican platform will have less impact on a potential Romney presidency than this blog.  In other words, Republicans don’t intend to live up to this promise. Heck, they don’t even know that they have such a position. That’s why I included the asterisk in the title and must draw your attention to this fine print.

*Offer not good when GOP holds power.

But I suppose it’s good that they included this language in the platform, even if it’s merely empty political rhetoric

P.S. If they did abide by the 10th Amendment, it means that Obamacare also would be repealed.

P.P.S. Yes, this implies limits on democracy. Our Founding Fathers, contrary to E.J. Dionne’s superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people.

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I’m not a lawyer, or an expert on the Constitution, though I sometimes play one on TV.

But I can read, and I’ll agree with my friends on the left that the federal government has a broad power to tax. I wish the 16th Amendment had never been ratified, but its language gives the federal government a green light to rape and pillage.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

That being said, the power to tax is not the same as the power to spend. And at the risk of sounding old fashioned, my big objection to the Obamacare decision is that health care is not listed as one of the federal government’s enumerated powers in Article I, Section VIII of the Constitution.

Sadly, that horse got out of the barn many decades ago, culminating in a horrible 1942 Supreme Court decision that said a man couldn’t grow crops on his own land to feed his own animals for consumption by his own family.

But let’s look at the bright side. Even though the Obamacare case was decided incorrectly, at least the judiciary is beginning to reconsider these issues, thanks in large part to the work of the Cato Institute’s legal scholars and adjunct legal scholars.

P.S. While the federal government has a broad power to tax, I should add that this doesn’t – or at least shouldn’t – vitiate other provisions of the Constitution. This is why it is so disappointing that we’ve seen the erosion of key civil liberties such as the presumption of innocence and the 4th Amendment’s protection against unreasonable searches and seizures.

P.P.S. This Michael Ramirez cartoon about Obamacare and the Constitution is amusing, though that’s not much solace given what happened. And here’s another one of his cartoons, this one on the broader theme of Obama vs. the Founding Fathers.

P.P.S. Speaking of cartoons, this one seems especially appropriate today.

If you like that one, you can see another Breen cartoon here.

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I have to give the Washington Post credit. It may have a bias for statism, but at least they have some diversity on the op-ed pages. Less than two months after E.J. Dionne wrote an embarrassing column showing he didn’t understand the difference between untrammeled majoritarianism and a constitutional republic, the Post publishes a terrific piece by George Will on the proper role of the Supreme Court.

Here’s some of what George Will wrote.

…a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders. Otherwise, individuals’ self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities. The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty. Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication. Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty. …The Constitution is a document, one understood — as America’s greatest jurist, John Marshall, said — “chiefly from its words.” And those words are to be construed in the bright light cast by the Declaration. Wilkinson worries about judges causing “an ever-increasing displacement of democracy.” Also worrisome, however, is the displacement of liberty by democracy in the form of majorities indifferent or hostile to what the Declaration decrees — a spacious sphere of individual sovereignty.

I offered my two cents on this issue, rhetorically asking why the Founding Fathers would have bothered listing enumerated powers if the interstate commerce clause was designed to be a blank check for politicians in Washington.

But Thomas Sowell, as usual, wrote about the issue with greater eloquence and clarity.

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I’ve repeatedly said that Michael Ramirez is a good political cartoonist (see here, hereherehere, here, and here), and he’s proved his worth in this cartoon that cleverly mocks the cavalier attitude that statists have about America’s founding principles.

And here are two more Ramirez cartoons, including one that also uses the theme of Obama vs the Founding Fathers.

Finally, for those who want some analysis of why schemes like Obamacare are inconsistent with the Constitution, here’s some good analysis by Walter Williams, Thomas Sowell, Philip Klein and Damon Root, and yours truly.

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My daily email containing the editorials and opinion columns from the Washington Post included an item written by E.J. Dionne entitled “Supreme Court activists: Conservative justices forget we’re a democracy.”

Surely this was a mistake.

I suspect he does understand, at least with regard to the first question. For instance, I’d bet a lot of money that he was correctly in favor of the Court’s decision to protect flag burning as a form of political speech, notwithstanding public opinion and congressional approval.

But he seems to join with other leftists in treating the interstate commerce clause as some sort of blank check for federal intervention into every aspect of our lives. And it shows up in various ways in his column.

…conservative justices are prepared to act as an alternative legislature…discussing whether parts of the law could stand if other parts fell… Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship. …This is what conservative justices will do if they strike down or cripple the health-care law. …a court that…sees no limits on its power, no need to defer to those elected to make our laws.

At the risk of being blunt, the conservative justices are doing exactly what they should be doing. They’re deciding if a law enacted by Congress is consistent with the powers granted to Congress by the Constitution.

America has a democratic form of government, but we are not a democracy. At least not in the sense that 51 percent of the people have the unlimited right to rape and pillage 49 percent of the people.

I have no idea of the Supreme Court will make the right decision, but I am overwhelmingly confident that the Founding Fathers didn’t envision mandated health insurance as a function of the federal government.

But maybe I’m just too old fashioned, because when I peruse the enumerated powers, I don’t see any authority for a Department of Energy either. Or a Department of Agriculture. Or a Department of Commerce. Or Department of Housing and Urban Development. Or Department of Education. Or a Department of Transportation. Or…well, you get the idea.

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I think Obamacare is bad policy because it exacerbates the main problem with the current healthcare system, which is third-party payer. And as a public finance economist, I’m obviously not happy about the new taxes and additional spending in Obamacare.

But those issues are temporarily on the back burner now that the Supreme Court is deciding whether the underlying law is constitutional.

I’m not a lawyer. I don’t even play one on TV. But I can read, and when I look at Article 1, Section 8, of the Constitution, I don’t see that Congress has the power to coerce me into buying a health insurance policy. Heck, I don’t see any role for the federal government in healthcare.

The statists say that the commerce clause (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) is a blank check for federal intervention, but that’s a bastardization of the original meaning and purpose of that passage, which was inserted to prevent states from imposing protectionist barriers.

What matters, though, is how the nine Justices on the Supreme Court interpret that passage. Here’s some of Philip Klein’s analysis for the Washington Examiner.

…the outcome of the case, and fate of the president’s most significant legislative achievement, will likely hinge on how the court views the Commerce Clause. One of the most widely debated parts of the Constitution, the Commerce Clause grants Congress the power “to regulate commerce with foreign nations, and among the several states.” And as the size and scope of the federal government has grown throughout the nation’s history, the Supreme Court has grappled with how broadly or narrowly to interpret the phrase. …If the court allows the mandate to stand, opponents claim, it would effectively give the federal government unlimited power to regulate individual behavior.

And here’s some of what Damon Root penned for Reason.

Article 1, Section 8 of the U.S. Constitution grants Congress the power “to regulate commerce…among the several states.” The framers and ratifiers of the Constitution understood those words to mean that while congress may regulate commercial activity that crossed state lines, Congress was not allowed to regulate the economic activity that occurred inside each state. As Alexander Hamilton—normally a champion of broad federal power—explained in Federalist 17, the Commerce Clause did not extend congressional authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” In other words, the Commerce Clause was not a blank check made out to the federal government. Yet in its decisions in both Wickard v. Filburn andGonzales v. Raich, the Supreme Court held otherwise, allowing Congress to regulate the wholly intrastate cultivation of wheat and marijuana, respectively. Those decisions cannot be squared with the original meaning of the Commerce Clause. As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

When I read all this material, my amateur legal analysis is pretty simple: Why would the Founding Fathers have bothered to list enumerated powers if the commerce clause gave the federal government a blank check to control our lives?

Like I said, I’m not a lawyer, much less an expert on constitutional law. Then again, this amusing poster shows that the same thing can be said about the President.

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