To inaugurate the 112th Congress, Republicans reintroduced liberals to something they seem to have long ago forgotten: the Constitution.
Liberals responded in predictable fashion by accusing conservatives of having a “fetish” for the Constitution. One Time columnist wrote a piece entitled “The Cult of the Constitution” and Salon attributed Tea Party constitutionalism to “neo-Confederate ideology.”
But the reading was a much needed, if perhaps superficial, reminder that Congress does not wield unlimited power. Far from it, the Constitution granted Congress a finite list of enumerated powers. And therein lies liberals’ inherent animus towards the document: It limits what good they can inflict through Congress.
To liberals, government is capable of perfecting society (or coming close). Whereas conservatives see in the Constitution a necessary constraint on inherently selfish and limited human beings, liberals see an obstacle to the nation’s brightest decreeing the end of injustice in America.
The problem for liberals, however, is that Americans, both in 1787 and 2011, deeply distrust unrestrained central government. We fought a war over being governed without our consent. So Americans created a national government to handle defined national affairs. Its power would grow only when three quarters of the people’s representatives agreed to an amendment.
The result was that the federal government created by the Constitutional Convention was a very limited one. The powers of Congress, for example, are specified in Article I Section 8, and they do not include many liberal schemes, such as enforcing workplace diversity requirements or cap-and-trade. All other powers are reserved the states and the people.
Alas, liberals found a way around the pesky Constitution. Congress and the Supreme Court have stretched the interpretation of “interstate commerce” so far as to cover virtually any action undertaken anywhere in the U.S., and if Obamacare’s individual health insurance mandate survives the Supreme Court, “interstate commerce” will now extend even to inaction in the health insurance market. If Congress can force a citizen to buy a product from a private company, what can’t it do?
The Constitution has become so irrelevant to liberals that when former House Speaker Nancy Pelosi was asked, regarding Obamacare, where in the document Congress is granted the power to force people to buy health insurance, she asked incredulously, “Are you serious? Are you serious?”
Whenever confronted about the constitutionality of their proposals, liberals also reflexively point to the general welfare clause.
James Madison addressed this very argument in The Federalist Number 41: "Some . . . have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the [Constitution's] power . . . ‘to provide for the common Defense and general Welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.”
Sound familiar, Nancy?
What follows is a statement that tears the Constitutionality of many of Congress’s laws of the past century to shreds.
"Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it . . . But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?"
There you have it. The general welfare clause was not, as liberals believe, a carte blanche for the federal government to do anything proclaimed to be good for the country. It was a general term alluding to specific objects: the enumerated powers. The other oft-cited “necessary and proper” clause permits Congress to make all laws necessary to carry out these powers, no more.
Admittedly, the federal government has done significant good through its extra-constitutional activity (Social Security, Americans with Disabilities Act, etc.), but because both Republicans and Democrats impatiently bypassed the amendment process to expedite popular proposals, and the Supreme Court abetted the mischief, Congress now has the ominous “unlimited commission” to do anything allegedly good for us. If an idea truly is good for Americans, it should not be difficult to get three-quarters of them to agree.
Liberal accusations of conservative “fetishism” of the Constitution and the Founders expose their fundamental misunderstanding of why conservatives have rallied around the document. Few conservatives believe the Constitution was perfect in 1787 or that the Founders were demigods. They do believe the power of the federal government should only be increased by the people’s consent through the proper channel the people agreed on: the amendment process.
Few of the framers thought a Bill of Rights was necessary to include in the Constitution, for, as Alexander Hamilton phrased it in the Federalist Number 84, “Why declare things should not be done which there is no power to do?” If only the Founders knew how badly the Constitution would be interpreted.
What conservatives are expressing when they wave pocket Constitutions in air is their indignation that the principle of limited government in the U.S. has been so disrespected, endangering our freedom. They see a government that long ago grew beyond the boundaries the people had given to it, a government that no longer draws its power from the people by their consent, but from itself, through its own successive misinterpretations of the Constitution.
Wyatt N. Troia '14, a Crimson editorial writer, lives in Pennypacker Hall.