Dec 282002

The Ninth Amendment, once compared by Robert Bork to an “inkblot,” states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, rights — spheres of action in which the government may not interfere — are to be construed broadly.

The Tenth Amendment states, “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.” In other words, federal powers are to be construed narrowly.

These powers are enumerated in Article 1, Section 8. Congress can collect taxes, borrow money, coin money, run the post office, provide for the common defense, sign treaties, declare war, regulate interstate, foreign and Indian commerce, and not a great deal else. Congress therefore has no Constitutional warrant to enact minimum wage statutes, environmental regulations, antitrust laws, workplace safety standards and the rest of the superstructure of the welfare state that we take for granted every day. The whole business is unconstitutional. All of it. Franklin Roosevelt’s purpose in trying to pack the Supreme Court was to push the New Deal through by diluting the majority of justices that believed exactly that. Here endeth the lesson.

  6 Responses to “The Shortest Course in Constitutional Interpretion”

  1. Come on, Aaron. You know it’s not that simple. I don’t have a copy of the constitution handy–I must have left my copy under the pillow–but there is something in there authorizing Congress to "provide for the general welfare," and for better or ill, that does open up a whole can of worms, doesn’t it?

  2. The powers are the powers, John, that much is clear. The federal government is permitted what’s in Article 1, Section 8, and that’s it. The Tenth Amendment makes this doubly clear.

    The general welfare clause is of course in the Preamble, which runs, "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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." That merely enumerates the purposes of the Constitution; ends, not means. It in no way grants the federal government any special powers, and the Founders would be shocked to believe that anyone thought so.

    If you’re really keen on federal economic regulation your last best hope is the commerce clause, and it’s a pretty thin reed to hang the welfare state on.

  3. Well, I guess I was wrong. If it’s in the preamble only, then it’s not a general license. Obviously I’m no constitutional scholar, but I imagine that the commerce clause has in fact been the cover under which federal economic legislation has been defended and (by the courts) accepted.

    I’m not a big fan of federal economic legislation per se, but it doesn’t bother me on principle, and I can’t get worked up about the idea that it might seem unconstitutional to James Madison. Courts, legislators, and the public have accepted that all this is within the limits of what the constitution permits for a long time now, and that precedent–a kind of common law amendment or annotation to the constitution–is more than good enough for me. If I really didn’t like it, I would feel obliged to lobby for a constitutional amendment to change the common practice. I say all this, of course, as a citizen, and not as a constitutional lawyer or judge.

  4. It has indeed been the commerce clause. Interstate commerce for a long time was defined so broadly as to allow for virtually any sort of federal economic regulation. In US v. Lopez, in 1995, the Supremes finally struck down a federal act prohibiting possesion of a gun within a few hundred yards of a school on the grounds that it bore no conceivable relation to interstate commerce, and commentators were shocked, shocked to find that not every federal regulation passed Constitutional muster.

    You view the gradual encroachment of federal power as a sort of common law; I cannot be so sanguine. To begin with, the modern interpretation of the commerce clause dates only from the 1930s; when FDR first took office his legislation was regularly struck down on commerce clause grounds, which is why he tried to pack the court.

    I think originalism, or trying to read the Constitution the way Madison would have read it, is methodologically hopeless, for many reasons. I’m a textualist, and I think judges are obliged to construe the plain meaning of the words. The plain meaning of the commerce clause has been twisted beyond all recognition, and I view that not as an "amendment" — there are ways to make amendments — or as an extension of the common law, but as a violation of the rule of law.

  5. I need to be more careful–more lawyerly, I guess it is–in posting on this topic. I did not mean to suggest that whatever anyone wants to take the constitution to be is OK with me. What I meant is that the commerce clause (among others, I’m sure) has changed its meaning as the world has changed, in this case as the meaning of interstate commerce–which in the 18th century was a sort of dessert to national economic life–has mutated into to what it is today, which is more or less identital with what we now call the national economy. So it stands to reason that the specifics of federal prerogatives would have grown over that time, or at least changed.

    This is where it becomes dicey–judgements are called for, judgements that, if the political process doesn’t produce decisions that seem reasonable to more or less everyone, will end up in the courts. Some of these judgements you or I may disagree with, whether it was because we are unhappy to see the federal government granted or denied a new authority under the aegis of the commerce or any other clause. All I’m saying is that I’m willing to live with those decisions of constitutionality, if they are arrived at with due process. And the longer they stay in effect the less happy I would be to see a court reverse itself–unless further historical changes warranted it.

    Thus, if I think a national minimum wage is a bad thing that (in addition) I also would not have accepted as constitutional, then I’ll either lobby Congress to repeal it and/or lobby for a constitutuinal amendment explicitly excluding it (and any related activities I feel the same way about) from the powers of the federal government. But I’d feel it’s silly–and in bad faith–and spitting in the wind–to try to convince anyone that it already is unconstitutional.

    I’ll tell what I don’t accept, though: the way Congress has for all practical purposes conceded it has no power either to block (or insist upon) the looming war. I’m not real happy about the perhaps unavoidable prospect of an American empire, but I’m horrifed at the prospect of an American emperor.

  6. Although there is more interstate commerce today than there was in the Founders’ day, I don’t think it follows that the meaning of the commerce clause has changed. It is now interpreted to mean "anything that substantially affects any enterprise engaged in interstate commerce," which is everything. That would have been as objectionable in 1800 as it is today.

    If I believe the minimum wage law is unconstitutional, then surely the worst possible thing I can do is lobby for a constitutional amendment against it. What better way to undercut my own position?

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