By Peter Hill

 

The Constitution, Part II: A Limited Federal Government

In my last essay I demonstrated how the purpose of the Constitution and the structure of the federal government it created limited the federal government. This limitation meant that other actors – families, businesses, churches, individuals, private clubs – had a greater sphere of activity, independent of the federal government. They were free.

The purpose was to strike a balance between effective government – one that could tax, wage war, resolve disputes, determine matters of public policy affecting many states – and a government that was not so strong that it constituted a threat to the very liberties and rights the Framers wanted to protect. The structure was that of a federal, constitutional republic with three branches that needed to cooperate with each other, and in which each branch could check the others. And (for the Framers) the branch with the most power and responsibility, Congress, was itself divided into two parts, with separate election schemes and schedules. It was federal because power was allocated between the federal government and the states. It was constitutional because governmental action (such as a President acting) and law (as passed by the Congress) was subordinated to a written Constitution. If an action or a law violated that Constitution, it was null and void.

 

Accordingly, the federal government was limited because its structure limited and dispersed power both within the federal government, and dispersed power between the federal government and the states.

 

But it was limited in other ways, too. The three most important limitations are (or, perhaps, were) the enumeration of powers within the Constitution, the Bill of Rights, and the 10th Amendment. The first was built into the Constitution. The latter two were added to address the fears of those who thought the original language of the Constitution might not be sufficient to limit the federal government’s tendency to grow and grow and grow, menacing the liberty of its people and the independence of the states.

 

Enumerated Powers Only

 

The federal government is not to “help people”, “do for people what they cannot do for themselves”, “remedy injustice”, or implement “really good ideas”. Those are all good things to do, and we rely on all kinds of people and organizations to do them. Businesses help people by giving them work and wages to purchase the means to live. Farmers grow food for people who otherwise would not be able to feed themselves. Carpenters and electricians do things for me which I could not do myself. State governors and legislators, city council members, municipalities, judges, and lawyers all remedy injustices. And all of us have “really good ideas” and act on them.

 

What, then, is the federal government to do?

 

The very first substantive sentence in the Constitution reads “All legislative powers herein granted shall be vested in a Congress of the United States…” Those legislative powers are enumerated, or listed, in Article I, Section 8, and include such things as collecting taxes, regulating interstate commerce, passing bankruptcy laws, declaring war, establishing post offices, supporting an army, and so on. The clause does not read “All legislative powers shall be vested”, but “all legislative powers herein granted shall be vested…”

 

The language is significant. The constitution does not say “Congress can legislate on anything unless the Constitution forbids it from doing so”, but “Congress cannot legislate on anything unless the Constitution says it can do so.” In addition, Congress was constitutionally authorized to pass laws which were “necessary and proper” for accomplishing its enumerated powers.

 

Accordingly, one of the things the 1994 Republican Contract with America did was to make every proposed federal bill cite the enumerated power which would justify the legislation. If there was no enumerated power which could be pointed to, the bill was not proposed.

 

Federal government power was kept in a box, as in the illustration below. Only enumerated powers were permitted. Nothing else was authorized.

 

Unconstitutional legislation outside the box.

 

Would be deemed null and void.

 

 

 

 

But would this be enough to protect liberty?

 

Bill of Rights Some Framers were wary of this. Was language about enumerated powers sufficient to protect the liberty of people from legislators and presidents who were full of good ideas and wanted to expand the empire of the federal government? An additional measure of protection was necessary. Not only would the federal government be limited to enumerated powers, but a Bill of Rights would further restrict what Congress could do. In effect, the federal government would be, like a magician, inside two boxes. A number of amendments were proposed to the new Constitution and were quickly ratified to become the first ten amendments, the Bill of Rights. The people would rely on both belts and suspenders, two safeguards, to prevent a “constitution malfunction.”

That is why the Bill of Rights typically indicates not what rights Americans have, but what the federal government may not do to them. Thus, the government may not abridge my freedom of speech or right to peaceably assemble (First Amendment). It may not deprive me of life, liberty, or property without due process of law (Fifth Amendment). It may not unreasonably search my person, effects, or house (Fourth Amendment).

The Second Box: Civil Liberties the Federal

Government May Not Abridge

 

 

 

 

 

 

This seems pretty clear. Congress can only act according to an enumerated power. And Congress cannot violate any of the Bill of Rights. Surely this is sufficient. Right? The Framers were realists, and recognized that political ambition – wanting to implement good policies and make people pay for them and conform to them – is a very powerful motivation. Government is always tempted to improve people, frequently against their will. So, a third box was devised.

The Tenth Amendment

The Tenth Amendment, ratified way back in 1791, states 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.” This, too, seems pretty straightforward. It is in some ways a repetition of the enumeration clause. “If it ain’t in there, you can’t do it.” The Tenth Amendment says to the federal government, “Only these powers and no others are the proper scope of your duties.” It does not matter how good an idea it is. It does not matter if it will help people. It does not matter if it will tend to make us all above average and millionaires. No. The Tenth Amendment tells the federal government, “Point to something in the Constitution that authorizes this legislation, or this action, or don’t do it.”

The federal government had three boxes which constrained its activities. in effect, early American federal government was almost libertarian in some ways. There was no cabinet department responsible for transferring wealth from one segment of society to another, because there was no general Congressional law transferring wealth from one segment of society to another. There was no cabinet department responsible for organizing things, except for four. The first cabinet level departments were straight out of Constitutional functions: Secretary of State, Secretary of War (or Defense), Secretary of the Treasury, and the Attorney General. The federal government, except for enumerated Constitutional functions, pretty much left the people alone to run their own lives, for good or ill.

 

But that is not the way it is now, is it? Look around you and find something that is not regulated, subsidized, organized by, required, forbidden, provided by, or taxed by the federal government. My computer is taxed. It has safety features. Its components are regulated by fair trade acts. The carpet meets fire retardant standards. The paint has no more than this amount of lead and this amount of volatile organic compounds. My shirt has a certain amount of American-made content. Etc. Etc. Etc. Federal government regulations are omnipresent, and seldom seem to have much relation to a Constitutional enumerated power. What happened.

 

The next essay will explain the erosion of our constitutional liberty, and the constitutional structure, and its exchange for security and “good ideas.”

 

© Peter Hill, 17 Feb 22