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"The new central government's powers would be sharply limited to those expressly spelled out in the new founding document -- funding a Navy, granting patents and copyrights, coining metal money. Not much more"
It's not really that hard to read, even for someone handicapped by a modern government-school education. If you can't find written down in the Constitution any specific, articulated power -- whether it relates to the size of your toilet tank, the type of light bulb you prefer or the power to clear your land of weeds and bugs -- then the central government has no such powers. So I guess any messy yard laws at the Federal level are unconstitutional! A doctrine 'most false and unfounded' Posted: Dec. 18, 2011 | 2:03 a.m. America's great national holiday is July 4, the celebration of the signing of the Declaration of Independence. But how long did that confederation of sovereign states, founded to fight the Revolution, really last? Only the brightest of today's young scholars are likely to recall that it passed away after only a dozen years, on June 21, 1788, when New Hampshire became the ninth state to ratify the new Constitution. With Thomas Jefferson safely off in Paris, Alexander Hamilton and the gang moved heaven and earth to convince a skeptical public that the stronger new central government they proposed would never grow powerful enough to take away any of their hard-won freedoms. (Kids are taught in school the Articles of Confederation weren't working because, among other indignities, seaboard states were charging extortionate duties on goods trans-shipped to landlocked states. But the first landlocked state, Vermont, wasn't admitted till 1791.) No, no, the new central government's powers would be sharply limited to those expressly spelled out in the new founding document -- funding a Navy, granting patents and copyrights, coining metal money. Not much more. Fast-forward 220 years. As a recipe for limited government, this Constitution now matches the creature it's supposed to describe about as well as a Chihuahua carrier would fit a loping Irish wolfhound. The prima facie proof of this failure now stares at us from every acre of the former marshland north of the Potomac, a granite necropolis and memorial park to our deceased freedoms at least a hundred times larger in manpower and frenzied ambition to control our lives than Jefferson could ever have imagined. Is there any remaining hope, today, for our fragile liberties? What hope remains is thanks to the fact that Rhode Island and North Carolina (bless them) outright refused to ratify the new Constitution until a Bill of Rights was added -- while Massachusetts, Maryland, South Carolina, New Hampshire, Virginia and New York all ratified only on the condition that some such set of amendments be quickly appended. And so, on the day we should probably celebrate as our second great national holiday, on Dec. 15, 1791, Virginia became the 11th state to ratify those solemnly promised first 10 amendments, James Madison's Bill of Rights (though a better name might be a "Bill of Prohibitions" on government conduct). On Thursday, the anniversary again passed largely unnoticed. But the Bill of Rights is still important, not only because it's still in force as the highest law of the land, but because it reminds us that ours was and is supposed to be a government of sharply limited powers. In fact, the main concern of those drafting the first eight amendments was that someone, someday, might take these to be our only rights guaranteed against government trespass. That's why -- in an attempt to placate such vociferous anti-federalists as Patrick Henry and Richard Henry Lee -- Madison and friends dutifully added the brief but vital Ninth and 10th amendments, specifying that, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and, "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." Anything our ancestors were free to do in 1788 -- without seeking any government license or permit -- we're supposed to remain free to do today. Now, modern fans of totalitarianism, coached by the slyest of lawyers and unionized youth-camp schoolmarms, will argue that the preamble to the Constitution advises us the purpose of the document is to "promote the general welfare," whereupon they will contend this plainly means Congress is allowed to enact any law and do any thing which a temporary majority of the two houses shall determine tends to "promote the general welfare." But that's not true. If it were true -- if the Constitution means "Congress can do anything that a majority thinks is for the general welfare," then why doesn't the document just end there? Why does the Constitution go on for page after page, itemizing the specific, limited powers of the central government? One of the best and most authoritative answers to this cynical justification for unlimited, Bonapartist tyranny was provided in the final year of his life by no less a figure than Thomas Jefferson himself, in the "Declaration and Protest of Virginia, 1825." "We ... disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch 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, has given them thereby a power to do whatever they may think or pretend would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare by the various acts of power therein specified and delegated to them, and by no others." It's not really that hard to read, even for someone handicapped by a modern government-school education. If you can't find written down in the Constitution any specific, articulated power -- whether it relates to the size of your toilet tank, the type of light bulb you prefer or the power to clear your land of weeds and bugs -- then the central government has no such powers. When the founders wrote the Constitution to limit allocations to raise an army for war to no more than two years, did they really envision leaving troops in Korea or Germany for 60 years, with Congress simply re-upping the authorization 30 times in a row, over two generations? No. They clearly meant to require intense biennial debate and real "zero-based budgeting" intended to prevent the establishment of any permanent military-industrial complex, knowing full well any such permanent institution would be constantly looking for new places to use up their stockpiles. (If we have to attack Iran because they're supposedly trying to build a nuke, when do we get around to France, South Africa, Israel and the Ukraine?) When the founders said my house could be searched only upon presentation of a warrant signed by a judge who had received an affidavit sworn under oath, did they envision cops showing a warrant only after they break down the door and shoot the surprised occupants? That cops who make misrepresentations about "probable cause, supported by Oath or affirmation" should never be prosecuted for that offense, meaning they can pretty much be as careless as they like? These provisions are all still there in our Constitution, as amended by the integral Bill of Rights, which Barack Obama and every member of Congress have sworn to "preserve and protect." I believe it was the late columnist Joe Sobran who once said that a government under the U.S. Constitution would not be ideal -- it would just be a whole lot better than what we've got now. Vin Suprynowicz is assistant editorial page editor of the daily Las Vegas Review-Journal and author of the books "The Ballad of Carl Drega," and "The Black Arrow." A version of this column first appeared in this space in 2002. See www.vinsuprynowicz.com |
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