The Constitutionality Crisis


Government Without Limits

Government Gone Wild

Although the current government of the United States seems to know no limits to its powers, it wasn't always so. For about the first 150 years of the republic, the U.S. was much closer to the country envisioned by the founding fathers. The congress understood what the Constitution does and does not allow and mostly confined its legislation to those areas in which the congress is empowered to act.

Powers of Congress

Count them. Article 1, Section 8 lists just 18 specific areas over which the Congress was given legislative authority. The final provision of Article 1, section 8 empowers the Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." Once upon a time, the congress knew its limits and, much as the congress would have liked to do more, congressmen were restrained by the Constitution. Some examples of former congressional restraint:


When the country, or at least those in power, decided to ban alcoholic beverages, they had to do it by means of a constitutional amendment. They understood that the Constitution does not empower the federal government to simply legislate a ban on alcohol. More recently, of course, when the government decided to ban some drugs, they simply passed laws. These laws are just as unconstitutional as a law banning alcoholic beverages would have been in 1920. So, why have these drug prohibition laws been passed if the congress is not empowered to do so? And why has the Supreme Court upheld these unconstitutional laws? The Constitution has not changed, but the attitudes of the congress and government have.

National Firearms Act

Just as the more recent drug prohibition in force today caused an escalation of violent crime related to competing gangs who realize substantial income from dealing drugs, so too the alcohol prohibition of 1920-1933 led to much violence between competing gangs of bootleggers.

Because of prohibition era violence, in 1934, the congress passed the National Firearms Act (NFA). What they really wanted to do was simply ban certain kinds of weapons. Of course, they could not impose an outright ban — the second amendment protects the right to keep and bear arms. But imposing taxes is a power constitutionally granted to the congress Article 1, section 8: "The Congress shall have Power To lay and collect Taxes..."). The NFA does not therefore ban any weapons, but it does impose a tax on certain weapons and "destructive devices" which the congress thought to be the primary weapons used by the gangs — machine guns, sawed off shotguns and the like.

More recently, of course, the congress has enacted an "assault weapons" ban prohibiting the manufacture of certain, scary-looking guns. A ban on the manufacture of machine guns (except for law enforcement) has also been enacted. The Second Amendment has not changed. These bans are just as unconstitutional now as they would have been in 1934. What has changed is the willingness of the congress to legislate in areas where it is not empowered to do so. Experience has taught the congress that it can ignore the constraints of the Constitution with impunity because the Supreme Court will uphold these unconstitutional laws.

The Commerce Clause

The powers granted to congress are listed in Article I, Section 8. Paragraph 3 gives Congress authority "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." This power "to regulate commerce" is probably the most abused part of the entire Constitution. When the founders granted congress the power to "regulate" trade, they did so to correct a deficiency that existed in the then current Articles of Confederation.

In 1778, during the American Revolutionary war, the states formed a union under the Articles of Confederation which ensured that: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

The states' sovereignty under the Articles of Confederation resulted in states which erected protectionist trade barriers. A state might heavily tax a commodity from out of state while not taxing the same commodity produced within the state. Land-locked states would be at the mercy of states with coastal access and good harbors, if those states decided to tax imports leaving their states.

It was therefore with the intention of promoting trade and removing trade barriers that the congress was granted the power to regulate trade. The Founding Fathers did not mean "regulate" in the sense of restricting but rather they wanted to promote trade among the states and prevent barriers to trade.

Alexander Hamilton, in Federalist #22 notes that "The interfering and unneighborly regulations of some States..." were "contrary to the true spirit of the Union" and thus Congress was empowered to regulate trade so as to prevent "interfering and unneighborly regulations." Had the founding fathers imagined how the commerce clause would later be used to micro-manage and intrude into every aspect of our daily lives, they would have doubtless been more explicit in explaining this particular power of congress.

The Beginning Of The End

The end of federal restraint came with FDR and his New Deal. Among the many unconstitutional acts implemented as part of the New Deal was the Agricultural Adjustment Act of 1938, intended to prop up food prices by keeping production low. The law provided that farmers could be fined if they produced more than their allotment of various crops. Since crops very often cross state lines in commerce ("Commerce ... among the several States ..."), congress felt that such regulations were constitutional.

Wickard v. Filburn (1942) was the Supreme Court ruling which upheld extending congress' regulation even to items that do not cross state lines in commerce, or, for that matter, which are not involved in commerce.

Filburn was a farmer in Ohio. The Department of Agriculture had set production quotas for wheat. Filburn, aware of the quotas and receiving subsidies for limiting his wheat production, nonetheless harvested more wheat than his government allotment permitted. He reasoned that the excess wheat, since it was for his own use — it never even left his farm — was unrelated to commerce and therefore shouldn't be counted toward his allotted production. The Department of Agriculture fined him anyway. Filburn filed suit against the Secretary of Agriculture of the United States, three members of the County Agricultural Conservation Committee for Montgomery County, Ohio, and a member of the State Agricultural Conservation Committee for Ohio.

The case ended up at the U.S. Supreme Court. In its ruling against Filburn, the court, ignoring more than 120 years of commerce clause jurisprudence, reasoned that, had he not grown the extra wheat for his own use, he would have had to purchase wheat. He was therefore affecting interstate commerce, albeit indirectly. This was the first case in which the Supreme Court upheld regulation of something that was not itself involved in interstate commerce.

This new power to regulate anything that merely affects interstate commerce means that, practically speaking, congress can legislate regarding just about anything — just be sure to mention "interstate commerce" in the legislation. There is little you can do which does not "affect" interstate commerce. You can't brush your teeth or flush your toilet without doing so.

If even the raw materials used to manufacture a product have moved in interstate commerce, that is sufficient justification for the Congress to feel it can regulate the manufactured product, even if the product does not move in interstate commerce itself. The "affects" expansion of Congress' power to "regulate commerce ... among the several states" is a blank check; there is little with which the federal government cannot meddle using this broad, unconstitutional interpretation of the commerce clause.

In the rare event that the Supreme Court declares a law or practice of government unconstitutional, the other branches simply find a way around Constitutional restrictions, often by paying lip service to the Constitution and passing the same legislation again, perhaps after adding some boilerplate text mentioning "interstate commerce."

We have gotten to the point where we are today by increasingly broad interpretations of the powers actually delegated by the Constitution. There is no reason to believe that the federal government will rein itself in (and no precedent exists demonstrating that any government, anywhere has ever done so without the application of external pressure).

The "Benefit of Doubt" always accrues to the federal government, never to the states and the people, as regards issues of Constitutionality. That is, all legislation proposed at the federal level is assumed to be constitutional. Likewise, the courts go out of their way to interpret laws as being constitutional, if they possibly can. The Judicial branch of the federal government has made this a rule that courts must follow.

Two hundred years of Judicial Review — letting the Supreme Court decide if laws are constitutional — have further demonstrated that the courts will not act to restrain government. It is therefore up to the people and the states to take responsibility for, and exercise the power of determining what is and is not constitutional.

James Madison warned of an overly broad interpretation of the General Welfare clause: "There are consequences, sir, still more extensive which as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.""

Madison continued: "... In short, sir, without going further into the subject, which I should not have here touched on at all, but for reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very nature of the limited government established by the people of America: and what inferences might be drawn or what consequences ensue from such a step, it is incumbent on us all well to consider."

"A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government."

Thomas Jefferson, In his first inaugural address

"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."

Chief Justice Marshall in Marbury v. Madison

"We still find the greedy hand of government thrusting itself into every corner and crevice of industry, and grasping at the spoil of the multitude. Invention is continually exercised to furnish new pretenses for revenue and taxation. It watches prosperity as its prey and permits none to escape without a tribute."

Thomas Paine, The Rights of Man [1792]

"Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."

Daniel Webster

"Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Louis D. Brandeis

"Liberty has never come from the government... The history of liberty is the history of resistance ... a history of the limitation of governmental power, not the increase of it."

Woodrow Wilson

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness."

Supreme Court Justice William O. Douglas

"The true danger is when liberty is nibbled away, for expedience, and by parts. "

Edmund Burke

"Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations."

James Madison

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Justice Louis D. Brandeis, Olmstead vs. United States, 277 U.S. 438 (1928)