MayerBlog: The Web Log of
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The Constitution’s Forgotten Foundation
This Friday, September 17, is Constitution Day, the day marking the completion of work at the Constitutional Convention in Philadelphia, 217 years ago, in 1787. We justifiably celebrate the document written at that Convention, the Constitution of the United States, as the world’s oldest written constitution still in effect. In a real sense, however, one might ask, Is the Constitution really in effect? Has it worked as its framers meant it to work – has it really limited governmental powers (the essential purpose of any constitution)? The answer is, Yes and No. Clearly the Constitution still limits the powers of both the national government and the states, for American judges – from the lowliest state and federal district courts, all the way up to the state and federal supreme courts – for over 200 years have exercised the power of judicial review (a feature unique to the American constitutional system), the power to declare laws inconsistent with the Constitution to be unconstitutional and therefore null and void. Despite this authority, however, the courts, and particularly the U.S. Supreme Court, have had a mixed record in enforcing the limits the Constitution places on both the scope of governmental powers and the means by which government may exercise those powers. Overall, the result is that the U.S. government today exercises a vast – and, in the opinion of many so-called “experts” on constitutional law, a virtually limitless – array of powers that would shock the Founders. Measured by its essential function (limiting the power of the national government), the Constitution could be regarded as largely a failure. “The era of Big Government” has supplanted the system of limited government envisioned by the Founders and stipulated by the Constitution. And beginning in the 20th century, as the power of the courts to decide constitutional questions has been largely unchallenged by the other branches of government, politicians in those other branches – including state legislators, governors, members of Congress, and presidents – have stopped worrying about fidelity to the Constitution as a political issue. Thus, we see Congress passing (and the President signing into law) bills that everyone knows to be unconstitutional, trusting that the courts will nullify them – as happened with the McCain-Feingold campaign-finance regulation legislation, except the Supreme Court surprised almost everyone by upholding the law. Clearly, the danger of other branches of government deferring to the Court on matters of constitutional interpretation is that the Court often fails to enforce the Constitution. The Supreme Court’s record, as noted above, has been mixed. In protecting the rights of individuals, the Court has been generally successful, although since the so-called “New Deal Revolution” of the late 1930s, the justices have followed a double standard: they protect fairly strongly, as “fundamental” rights, certain rights that “liberal” judges like (such as First Amendment freedom of speech and certain procedural guarantees for accused criminals), while they protect only narrowly, or ignore altogether, other rights that they value less (such as Second Amendment rights or the protection of economic liberty or property rights under the Constitution’s due process clauses). Even more disappointing has been the Court’s record with regard to the powers of government, especially the powers of the national government. Here the Court has almost totally forgotten a key provision of the Constitution, the Tenth Amendment, and the fundamental principle that it was designed to protect: keeping the national government limited to those powers enumerated in the Constitution itself. Like the Articles of Confederation before it, the U.S. Constitution created a national government of limited powers, enumerated in the text. Before the Tenth Amendment was added to the Constitution, this fundamental principle was found in one little word – herein – found in Article I, Section 1, of the Constitution, the first sentence of the document following the preamble: “All legislative powers herein granted shall be vested in a Congress of the United States . . . .” (emphasis added). Section 8 of Article I is the principal provision where the powers of Congress are enumerated. Its 18 clauses list those powers, ranging from the power to levy taxes to the supplemental power to make “all laws which shall be necessary and proper” for carrying into execution any of the enumerated powers. The Tenth Amendment simply affirms this fundamental principle that the national government is one of limited, enumerated powers. It was added to the Constitution, along with the other Bill of Rights amendments in 1791, in order to protect against one of the chief dangers that opponents of the Bill of Rights had raised during the Constitution’s ratification. They feared that adding particular rights guarantees to the Constitution might undermine its enumerated-powers scheme. For example, Alexander Hamilton had asked, “Why should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” Hamilton’s fear was that by specifying certain things (such as abridging freedom of press) that the national government could not do, a bill of rights might “afford a colorable pretext” for the government to claim more powers than it was granted under the Constitution’s enumeration. To guard against this danger, James Madison – the principal architect of the amendments that later became the Bill of Rights – crafted the Tenth Amendment, to reaffirm the principle of enumerated powers. (Its companion amendment, the Ninth, similarly was intended by Madison to guard against the other main danger of adding a bill of rights: the danger of losing rights that were not enumerated.) The Tenth Amendment provides: “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.” It means exactly what it says: that the national government’s powers are limited to those “delegated” to it by the Constitution; and that everything else is either a power reserved to the States or a “power” retained by the people (which is another way of saying it’s a power denied to government at any level). Thomas Jefferson called the Tenth Amendment “the foundation of the Constitution.” As he understood it, the amendment provided a rule for strictly interpreting the power-granting clauses of the Constitution. If a given power was not found among those enumerated in Article I, Section 8, Congress could not exercise it. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” Jefferson wrote this in his 1791 opinion on the constitutionality of a bill creating the Bank of the United States, arguing that Congress did not have the power because it was not among those enumerated, including the “Necessary and Proper” Clause, which Jefferson interpreted fairly strictly. He lost that battle: President Washington (whom Jefferson was advising as a member of Washington’s cabinet) followed the advice of his secretary of the treasury, Alexander Hamilton, and signed the bill chartering the bank (part of Hamilton’s financial program) into law. (In one of the great ironies of history, Hamilton – who had argued against a bill of rights in 1787, maintaining that it would give a “colorable pretext” for unenumerated powers, as noted above – took a broad view of federal powers in his opinion defending the bank bill.) Eventually, when the constitutionality of the Second Bank of the United States (the successor to Hamilton’s institution) was questioned in the courts, the U.S. Supreme Court in an opinion by John Marshall upheld the bank, under a Hamiltonian broad interpretation of federal powers. (To Marshall, as to Hamilton, the word necessary in the Necessary and Proper Clause meant merely convenient; and so an institution like the Bank, which would facilitate federal tax collections and borrowing of money, two of the enumerated powers, fell within the scope of the clause.) Jefferson’s strict view of federal powers, however, prevailed in the long run. His successors as president – including James Madison, James Monroe, and Andrew Jackson – used their veto power against road bills and other “internal improvements” legislation (what today we would call “pork-barrel” bills). Jackson, in fact, used his veto to prevent the rechartering of the Second Bank, despite the Marshall Court’s opinion upholding its constitutionality, for he (like other 19th-century presidents) maintained he had independent authority to interpret the Constitution in exercising presidential powers (like the veto) and he, like Jefferson, regarded the Bank as unconstitutional because it fell outside the scope of enumerated powers. After John Marshall’s death, the Supreme Court for almost a century – from the late 1830s to the late 1930s – gave practical meaning to the Tenth Amendment by upholding the system of limited, enumerated powers and by fairly strictly interpreting the enumerated powers, including both the so-called “general welfare” clause and the “Necessary and Proper” Clause. The former, as Jefferson had argued in 1791, does not give Congress a blank check to legislate on whatever it deems to be for the “general welfare.” Instead, the clause – which is more precisely a phrase, limiting the taxing power (for it appears in Article I, Section, 8, clause 1, granting Congress the power “to lay and collect taxes, . . . to pay the debts and provide for the common defense and general welfare of the United States”) – restricts federal spending to legitimate federal matters; that is, the matters enumerated in the rest of Article I, Section 8. (There is, in fact, no such thing as the “spending power”: the Constitution does not grant Congress the power to spend money at all; it may spend money only where “necessary and proper” to carry out the other enumerated powers; for example, for raising an army or a navy.) Also following the Jeffersonian approach, the Court generally interpreted the “necessary and proper” clause fairly strictly, limiting Congress to those additional powers closely connected with the enumerated powers. Moreover, the Court applied the Tenth Amendment by drawing limits around the scope of Congress’s power “to regulate commerce . . . among the several states,” the so-called Commerce Clause, another enumerated power that might be interpreted in a dangerously broad way. Two important examples of the way the Supreme Court enforced the Tenth Amendment in the early 20th century are the so-called “Child Labor Cases,” Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922). In both these cases, the Court struck down as unconstitutional laws passed by Congress to ban child labor – and properly so, not because child labor is a good thing, but because labor laws do not fall among the powers given the national government by the Constitution. Rather, as the Court correctly found, regulation of labor was a matter left by the Tenth Amendment to the states. In the earlier case, Congress had tried to ban child labor under the rubric of the Commerce Clause; but as the Court noted, the power of Congress was limited to interstate commerce and could not be extended to purely local matters (such as the age of workers employed in factories) without “destroy[ing] the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.” In the latter case, Congress tried a different rubric under which to justify a federal ban on child labor – the taxing power, levying a punitive tax on the products of child labor – but the Court again found that Congress could not constitutionally use the tax power to seize control over “any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment.” In his opinion for the Court, Chief Justice Taft added, “To give such magic to the word `tax’ would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the states.” Following the so-called “New Deal Revolution” of the late 1930s, however, the Supreme Court ceased using the Tenth Amendment as a device for limiting the scope of federal powers. The Court explicitly held that the Tenth Amendment stated merely a “truism,” that whatever wasn’t delegated to the federal government was retained by the states, which was another way of saying that the Court ceased regarding the amendment as a meaningful limit on federal powers. The Court began upholding various federal New Deal laws, including federal labor laws and the Social Security Act, under expansive interpretations of both the Commerce Clause and the taxing power, allowing the latter to be used precisely the way Jefferson had feared (as a blank check for Congress to spend money on whatever it deemed to be in the “general welfare”) – and even in ways that probably would shock Alexander Hamilton, too! Until just a few years ago, it was fashionable for constitutional law “experts” to declare that the Constitution imposes no limits on Congress’s power to spend money, under the Tax Clause, or to regulate virtually any activities, under the Commerce Clause. Then, in 1995, by a close 5-4 vote in United States v. Lopez, the Court for the first time since the mid-1930s struck down a federal law as unconstitutional under the Commerce Clause. The law in question, the federal “Gun-Free School Zone Act” (banning possession of a firearm within a certain distance of school buildings) was not a “regulation of commerce,” Chief Justice Rehnquist noted in his opinion for the majority of the Court. Justice Clarence Thomas, in a concurring opinion, went even farther, citing the Tenth Amendment and suggesting that the Court needed to reconsider its post-1937 Commerce Clause jurisprudence. (As I have argued in a 1996 law review article – see my list of published writings – Thomas, more than any other justice on the Court today, understands the importance of the Tenth Amendment as a rule of constitutional interpretation.) The full implications of the Lopez decision have yet to be realized by lower courts and even by the Supreme Court itself. Although it followed Lopez, by the same 5-4 margin, in a later decision invalidating a provision in the federal Violence Against Women Act creating a right to sue for sexual assault in federal court – again noting, correctly, that the law did not regulate commerce – the Court has failed to reexamine its Commerce Clause jurisprudence as Justice Thomas called for in his concurring opinion. And lower courts largely have failed to follow Lopez in invalidating a whole array of federal laws regulating non-commercial matters (including other gun-control legislation). Part of the problem is not only that the Lopez majority is so narrow – a 5-justice majority which could easily become a 4-justice minority view if one justice changes his or her mind or if a new justice is appointed to the Court (one reason why the 2004 election is so important) – but also because, even among conservatives who profess respect for the Tenth Amendment, the Amendment is still misunderstood. When the Court relies on the Tenth Amendment today, it usually does so in the name of protecting federalism, “state sovereignty” – as Chief Justice Taft put it in 1923 – or “state rights,” as other people put it. The term state rights, however, is a misnomer, for states have no rights; only individuals have rights. States have powers; and although part of the purpose of the Tenth Amendment is to protect powers reserved to the states, its overall purpose is to limit federal powers, not only to protect the states but also to protect the “powers” or rights reserved (as the last four words of the Amendment state) “to the people.” The Tenth Amendment is just as important a protection of individual rights as it is of state powers or the federal system. When Congress uses powers beyond those enumerated in the Constitution, it not only endangers our federal system of government but also deprives individuals of their freedom. Thus, although the conservative resurrection of the Tenth Amendment in recent years is a positive development, much more needs to be done to educate lawyers, judges, legislators, and ultimately the American people about the true meaning of the Tenth Amendment, as the Framers intended it. If we continue to allow Congress to pass virtually any law it wishes, under the rubrics of either the taxing power or the commerce power, we no longer have a system of limited, enumerated federal powers. Instead, we are giving Congress virtually “a blank check,” as Justice Thomas warned in his Lopez concurrence, echoing Jefferson’s concerns 200 years ago. Today’s conservatives who profess to understand the importance of the Tenth Amendment need to check their own inconsistencies, their own blind spots, where they are as guilty as left-liberals of using federal powers broadly to enforce their own pet projects. One example in the news recently is the federal law banning so-called “partial birth” abortions. Three federal district courts so far have ruled that the ban is unconstitutional because it’s inconsistent with Supreme Court decisions protecting abortion rights where the health of the mother is at stake. That’s the right result, but for entirely the wrong reason. The real reason why the federal ban is unconstitutional is that nothing in the Constitution authorizes Congress to legislate with regard to medical procedures; laws regulating abortion fall within the powers reserved to the states under the Tenth Amendment. Thus, although conservatives are right to question the validity of the Supreme Court’s infamous decision in Roe v. Wade, they do so for the wrong reason. There is a “right to privacy” that the Constitution ought to protect (under either the Ninth Amendment or the general protection of liberty under the Due Process Clauses); but whether that right includes freedom to obtain an abortion is subject to state law protecting the rights of unborn persons. (The legal definition of the beginning of life, not being an enumerated federal power, is reserved to the states under the Fourteenth Amendment.) If conservatives wish to be taken seriously, they ought to join libertarians in calling for a faithful return to the Founders’ Constitution, including particularly its foundation, the Tenth Amendment. Taking the Tenth Amendment seriously would mean that many government programs and laws popular with liberals and conservatives alike – including among them such sacred cows as Social Security, federal labor laws (including the minimum-wage law) and federal civil rights legislation – are really unconstitutional and ought to be repealed.
| Link to this Entry | Posted Monday, September 13, 2004 | Copyright David N. Mayer |
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