Tuesday, December 28

Two views of what power the Constitution gives the central gov't

Obamacare is just the latest and most egregious effort to expand government power over the citizenry. As passed by a Dem-controlled congress, it would force individuals to buy a private product (health insurance) sold--at least for now--by for-profit companies.

Before the law passed, some conservatives asked their reps what article in the Constitution gave the government the power to require this. Some congresscritters simply dodged the question--the most infamous being "I don't have any concerns about that." Others at least took a stab at trying to grab a fig leaf to cover the naked power grab and said "The 'general welfare' clause."

Still others said "the commerce clause."

The question illuminates a fundamental difference between the way the Founders interpreted the powers they gave the central government, and what has actually happened since. It's a very crucial debate--one you'd be well advised to ensure your kids know about.

The first clause in Article 1 Section 8--usually termed the General Welfare clause--is:
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;
(The section goes on to list another 17 specific powers delegated to congress.)

Liberals claim this clause permits the federal government to do absolutely anything, as long as the things contemplated "provide for the general welfare" of the citizenry.

Conservatives--and the writings of the Founders--emphatically reject this view. Instead they claim that the clause gives congress the power to lay and collect taxes only to accomplish those things which the rest of the Constitution authorizes it to do.

Moreover, for the Liberal view of this clause to prevail, Liberals must implicitly contend that this unlimited power was a) present from the outset, and b) known to be present by the signers.

These requirements arise from the principle that if we're trying to reach an agreement but never did actually agree on the meaning of some crucial term ("...depends on what the meaning of 'is' is.."), then there is no agreement, even if we signed a paper saying there is.

In this case, if the signers believed they had negotiated--and reached agreement--that the government only had certain very specific, limited, "enumerated" powers, a later party can't legally prevail in claiming that the document actually confers unlimited powers without voiding the agreement.

And it's virtually impossible to defend the two implied requirements above because a wealth of contemporaneous writing exists among the Founders/signers stating that virtually all understood they were agreeing to limit the power of the central government to the specific powers mentioned in the document.

Obviously the difference between the liberal and conservative interpretations of this clause is huge. In one the federal government has limited power, while in the other it's unlimited.

Wiki --in no way a conservative supporter--summarizes the controversy as follows (edited):

The two primary authors of the The Federalist essays had conflicting interpretations:
  • James Madison believed in that spending must be tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military. He believed the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.
  • After the Constitution was ratified, Alexander Hamilton argued that the power to tax and spend "for the general welfare" was a separate enumerated power, as long as the spending was general in nature and did not favor one state or region of the country.
In 1936 the Supreme Court ruled against the interpretation held by Madison and Jefferson, holding that the power to tax and spend was an independent power (United States v. Butler). In so holding, the court implicitly found that all the parties to the signing of the Constitution agreed that this was the outcome they bargained for--which is clearly not the case.

The Court did find that this newly conferred power to tax and spend could only be exercised for matters affecting the national welfare. But obviously this is an illusory limitation, since any good outcome can be rationalized to "affect" the national welfare. Indeed, the decision was so myopic that a law affect the national welfare in a way all agree was deleterious would still pass this illusory "limitation."

More recently in South Dakota v. Dole the court held that the general welfare clause gives congress the power to bribe the states into adopting national standards by threatening to withhold federal funds if they refuse.

The same pattern observed in the gradual evolution of the "general welfare" clause is also apparent in the court's treatment of the Commerce clause. This clause (Article I, Section 8, clause 3) says that congress shall have power "To regulate Commerce with foreign Nations, and among the several States...."

This seems quite innocuous--if any entity is to regulate commerce between the states, seems like a natural function of the central government.

When the Constitution was signed one never would have guessed how congress and the courts would use this innocuous clause to expand their power to a degree unimaginable by the founders.

A typical example is Wickard v. Filburn (1942). To increase wheat prices during the Depression the government had decreed that farmers could only produce a fixed amount of wheat per acre. Farmer Roscoe Filburn grew wheat, not for sale in the market but simply to feed his own chickens. The amount of wheat he produced was more than the number of bushels allowed by the gubment, so the gubment ordered Filburn to destroy his wheat and pay a fine.

The courts upheld this order, even though the record is undisputed that all wheat grown by Filburn was for his own use; that he never sold or tried to sell it, and had no intention of doing so.

The Supreme Court held that Filburn's wheat production reduced the amount of wheat he would otherwise have had to buy on the open market to feed his chickens. It followed--to a majority of the justices on the court, at least-- that Filburn's production of wheat--even for his own consumption--affected interstate commerce, and thus the federal government had a constitutional right to regulate it under the Commerce clause.

As many critics have noted, if such reasoning is allowed then every activity can eventually be said to "affect interstate commerce," and thus by Wickard to fall under federal regulation and control.

It's almost impossible to read this decision without feeling that the court was stretching to reach a politically-desired outcome.

But the whole thrust of the Constitution was that the power of the central government was to be limited to only a handful of specific powers. In fact the tenth amendment reassured the states by specifically providing that
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.
You'd think such clear, simple language would be impossible to misinterpret. But apparently determined leftist judges and congresscritters can "misinterpret" anything if doing so will serve their ends.

Also, it's fascinating to see how easily the language of Wickard morphs into summaries that leave the impression that we're actually living in Chavez's Venezuela. Here's an example from the Wiki summary:
Hence...if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.
Heaven forbid that the government would actually allow farmers to consume food they themselves raised. Why, we must set up a commission to punish this practice!

Which, of course, is exactly what the government did in Wickard.

All three of the debates above--about the General Welfare clause, the Commerce clause and the tenth amendment--illustrate the same point: In each case people determined to advance their own purposes ignored the clear and obvious thrust of the Constitution, in order to give more power to the federal government than the founders clearly intended.

Unfortunately this effect seems to work only in one direction, because The People don't have armies of full-time, government-paid attorneys working non-stop to prevent the government from taking more power.

By huge contrast, congress and the executive branch do have these resources. Thus the only check on the one-way ratchet is the ethics and respect for the Constitution--if any--practiced by these two agencies.

And of course, the total of ethics and Constitutional reverence in both congress and the executive branch is almost zero.

Postscript to an already too long post: It may be that the erroneous placement of a single comma provided the chink into which liberals have since driven the wedge to claim unlimited power under the General Welfare clause. Here it is again:
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;
The offending comma is after the word "Excises" in the first line. Remember that Hamilton claimed that the power to provide for the general welfare was actually a separate enumerated power, clearly bargained for by the signers. This claim is made possible if you construct the clause as "Congress shall have the power to: 1) Lay and collect taxes...; 2) to pay the debts and provide for...the general welfare; [etc]

If the comma weren't present it would be clear that providing for the general welfare was simply a use for taxes collected by the central government, and thus that the clause was not conferring a separate, "enumerated" power.

But obviously the comma IS present, so the meaning is less clear than it could have been. To resolve the matter of which interpretation was originally intended, we look at the remainder of the section. And there we find that each of the other 17 enumerated powers is on a separate line; that each line ends with a semicolon; and that each line begins with a capitalized T in "To".

To adopt the Liberal (Hamiltonian) view requires that we accept that the signers treated this second alleged power--allegedly granting the government the unlimited power to provide for the general welfare--differently from all the others, by appending it to the power to tax with a comma instead of setting it off in its own line, following a semicolon and with a capital T, as they did with every other power.

Liberals are never called to defend this interpretation. And as far as I'm aware, the matter has never been raised in court.

But for those who have been paying attention, even if there was a clear addendum to the Constitution stating that the General Welfare clause was NOT a separate power, it wouldn't matter--the armies of congresscritters bent on buying votes to assure their re-election would have done what they damn well pleased anyway. And the courts would have turned a blind eye--as they have.


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