“For why declare that things shall not be done which there is no power to do?” writes Alexander Hamilton in Federalist 84. “[B]ills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”
“The Constitution can stand alone as a ‘Bill of Rights’” was Hamilton’s clear message here. Many of America’s Founders held to that view and the Founders were no slouches, so we would expect to find some substance to the claim. If the Framers indeed designed a United States Constitution of “limited and enumerated” powers, as Madison claimed in remarks during the Virginia Ratifying Convention, where was the fear of government infringement on individual freedoms to be found?
Indeed, in several places in the Constitution we find particular individual rights given explicit protection. For instance, in Article 1, Section 9 we find Congress specifically denied power to create bills of attainder, ex post facto laws and suspend the “Privilege of the Writ of Habeas Corpus.” Similar restrictions against the states are found in the next section of Article 1. The states are further required to protect your right of contract in the same section. In Article 3, we find the fundamental right of trial by jury preserved for “all Crimes, except in Cases of Impeachment.” “All Privileges and Immunities of Citizens in the several States” are guaranteed/protected in Article IV. But what do these consist of? The Constitution gives us no clue and, while the Supreme Court had an opportunity to provide an answer in the past[i] they demurred, so we are left to ponder the extent of this protection. As regards congressmen and congresswomen, a limited form of freedom of speech, at least while engaged on the floor of Congress, is found in Article 1, Section 6, where a companion protection from arrest is also located.
But that is about it as far as specific individual rights protections are concerned in the seven articles which make up the original Constitution. Where is the explicit protection of speech, or religion, of conscience, of the right to keep and bear arms, etc.? Hamilton’s answer of course would be: “where is the government given power in the Constitution to intrude upon any of those rights? The weight of Hamilton’s and Madison’s argument must rest then on the Constitution actually being, and, more importantly, remaining, a limited powers document. It is quite clear from the journals of early Congresses that congressmen routinely considered the Constitution to limit the powers of government.
The 1st Congress refused to approve a loan to a glass manufacturer in Georgetown after some members charged it was unconstitutional. A member in the 3rd Congress (1794) proposed $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. Third-term Congressman James Madison rose to object, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The 4th Congress (1796) turned down a request for relief to the citizens of Savannah, GA, after a fire burned down nearly a third of the city. On his last day as President in 1817, James Madison famously vetoed what today we would call an Infrastructure Bill,[ii] stating: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers [of the Constitution].
Has Madison’s view persisted? The following should be shielded from sensitive eyes.
Beginning principally in the Progressive Era and accelerating in the New Deal Era, the effort to expand the powers of the federal government has enjoyed great success. In 2010, then Congressman Peter Stark of California famously declared that “Yes, the federal government can do most anything in this country.” The picture has not improved much in the last twelve years.
Thanks to decisions in 1936[iii] and 1937,[iv] the Supreme Court gave Congress the power to spend money on anything it could justify in its own “mind” as supporting the general welfare of the United States. Madison warned in 1792 that this sort of interpretation of the General Welfare Clause would turn the “limited powers” Constitution into “an indefinite one subject [only] to particular exceptions.”[v] The 1937 Supreme Court had a different idea and today, Madison’s observation that “Charity is no part of the legislative duty of the government”[vi] is considered a quaint relic of a bygone era.
In 1942,[vii] the federal government was given the power to regulate nearly all aspects of business in the U.S. since only a miniscule connection to “interstate commerce” was necessary. In 1968,[viii] the Court cleared the way for Congress to delegate its exclusive law-making power[ix] to executive branch agencies. This has resulted in a veritable flood of “regulations with the force of law” which impact our individual lives in myriad ways and the compliance of which are estimated to add $2 Trillion dollars to the cost of doing business in this country, a cost passed on to you and me in the form of increased prices for goods and services.
The Anti-federalists warned of the immense power being given this new central government,[x] yet I doubt they foresaw the magnitude of the federal power-grab we continue to experience today. Even the addition of a discrete Bill of Rights in 1791, while affording important individual rights protections, has not been enough (what does “shall not be infringed” mean?) Hamilton’s hope that the Constitution could stand alone as a Bill of Rights was hopelessly utopic. A Bill of Rights has proved absolutely necessary, but not alone sufficient to curtail the continuing federal power grab.
In conclusion, for the U.S. Constitution to have stood alone as a protector of individual, God-given, unalienable rights, as Hamilton wished, was in hindsight incredibly naive. One important feature of the original document needed to survive: limited powers, and it didn’t. Various groups with a decidedly different view of the purpose of government, assisted by a Supreme Court which from time to time shared their view, have successfully changed the fundamental nature of our wonderful Constitution from one of limited and enumerated powers to one of near plenary power. Taking advantage of the ambiguity of words and the concept of a “Living Constitution,” these forces have succeeded in creating a government which today intrudes into nearly every aspect of our private and corporate lives. The “demise” of the Tenth Amendment has been widely recognized by both Left and Right.[xi]
What is to be done? Must we simply acknowledge this sea change in the Founders intent to “secure the blessings of liberty to ourselves and our posterity” and learn to live with Leviathan? That is certainly one option – one allowing us to live relatively peaceful if increasingly controlled lives. The other response requires action, commitment and purpose. We must rouse ourselves and our neighbors, educate society to the problem we face and the inevitable endstate should we remain on this path, and proceed methodically to repair the damage to this inspired document. The Supreme Court can be an ally in this project, if an originalist majority can be kept in place long enough to reverse key decisions. But that could take decades, perhaps scores of years. The more logical approach is one the document itself gives us: amendment.
Congress will never take action to reduce the immense power they have been given by the aforementioned SCOTUS decisions; that much, I hope, we can agree upon. But a carefully worded amendment defining “commerce” and placing limits on the interpretation of the Interstate Commerce Clause could. No power-reducing amendments will ever emanate from the Congress and be sent to the states for ratification. So, we face precisely the situation Colonel George Mason of Virginia warned of on September 15, 1787, as the delegates considered the, at that time, single method of amending the Constitution. “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (Madison writes in his Notes), as he (Colonel Mason) verily believed would be the case.” Adopted “nem con” (i.e., unanimously) was a second method of proposing amendments: the states could meet in convention to consider and propose amendments.
It seems to this writer that the solution to the problem of Leviathan is at hand, given us expressly for the situation we now face: congressional intransigence. Will we grasp it or allow individual freedoms to inexorably slip away?
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at firstname.lastname@example.org, on Facebook or Twitter (@constitutionled).
[i] Notably in what became known as the Slaughterhouse Cases.
[iii] United States v. Butler, 297 U.S. 1 (1936).
[iv] Helvering v. Davis, 301 U.S. 619 (1937).
[v] “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”
[vi] James Madison, Speech in the House of Representatives, January 10, 1794.
[vii] Wickard v. Filburn, 317 U.S. 111 (1942).
[viii] Mistretta v. United States, 488 U.S. 361 (1989.
[ix] “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”