Friday, January 14, 2011

Is the Problem with the Constitution That We are Misreading It?

Having we misread the Constitution?  The more I think about it, I am coming to the conclusion that yes, we have.  After the reading of the Constitution in the House of Representatives and despite the provisions in the new House Rules regarding the citation of a Constitutional provision for every piece of legislation introduced in the House, it is not going to matter much in my opinion.  There will be three provisions cited more than any other:

  1. The Interstate Commerce Clause.  With the notion that just about everything impacts interstate commerce, Congress will regulate every kind of business, even one that is purely intrastate.
  2. The Necessary and Proper clause" even though this clause was created to allow Congress to pass legislation necessary and proper for carrying out its delegated powers in Art. 1, Sec. 8.  I don't the the House Leadership should let this pass, there needs to be something else cited, but we will see.
  3. The General Welfare clause.

It is that last one that carries the most danger--and I am not even talking about how you define "general welfare," itself a significant problem.

Article 1, Sec. 8 gives congress the power to levy taxes and appropriate money for the general welfare of country.  The problem is that the general welfare is interpreted so broadly by Congress, no matter who is in power on Capitol Hill.  But a broad interpretation of a delegated power runs contrary to the purpose behind the Constitution, the creation and framework for a government of LIMITED powers.

The Congress wants to expand its power, that much is almost assured and they frequently use the spending power as a means to do so, spending money and attaching strings  and conditions to that money in order for states/localities to spend it.  The classic example is federal highway money, which used to be given to states only if they had a 55 MPH speed limit and a drinking age of 21.  So in order to force compliance with what Congress decided was in the general welfare (i.e. a speed limit or drinking age despite those being largely a matter of state concern), Congress held federal money hostage, money that had been taxed from the various states and their citizens, in order to obtain a policy goal it ordinarily would not have been able to touch because it is not within the purview of its delegated powers.

The Courts have almost universally allowed such "covert" regulations and legislation to be attached to spending bills with impunity because Congress can spend for the general welfare. But more and more I find myself wondering if that the courts and Congress and the states themselves, were just completely wrong and we have let it go for so long that we think it is the natural order of things.  We have allowed the notion that Congress can attach any kind of strings to federal spending.  The Preamble to the Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We the People wanted to promote the general welfare by establishing a national government of limited, delegated powers designed to keep the federal government limited.  But if the spending power for the general welfare is located in the list of limited powers of the Congress, how can it have such a broad scope, allowing Congress pass laws that otherwise would not be possible under the limited powers of Art. I, Sec. 8?  In other words, if the power of Congress is limited by Sec. 8, why is the spending power treated and interpreted so differently than other powers?   Did the Framers really intend to provide a list of limited powers and then say, "those limited powers and spheres of responsibility don't apply if Congress is spending money for the general welfare?"  

Are policies related to policing (speed limit), health and welfare (drinking ages or education) of the citizenry not a matter for the states and localities?  Where in the theory underlying the Constitution of a limited government of delegated powers and a concerted effort by the Framers to circumscribe and check the powers of the national government do the Courts, Congress and national Executive find the power to regulate matters outside the discrete list of Section 8 Powers?

We need to seriously think about how to resolve that conflict that is in keeping with the actual Constitution.

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