Our federal Constitution specifically “enumerates” what powers belong to the federal government - health care, speed limits and drug laws are not included.
However, the Constitution also contains some very broad phrases allowing the federal government to “provide for the general welfare” and “regulate interstate commerce.”
Over the years, the U.S. Supreme Court has used these broad phrases to expand federal control, ignoring the enumerated powers section of the Constitution.
To those who believe in interpreting the Constitution literally, this is nothing short of treason from the very men sworn to defend the Constitution. The debate rages on today. Seventeen states contested the power of the federal government to implement Obamacare. They lost.
For those who don’t recall, James Madison is the prime author of our Constitution. Madison wrote:
“It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and 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. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
“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; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare.’
“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? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”
So the primary author of our Constitution not only objected to a broad interpretation of the “general welfare” phrase, but Madison considered using this phrase to justify unlimited federal power as “absurd.”
If the “general welfare” clause allows the federal government unlimited power, then why did Prohibition require a constitutional amendment? Because back then, we actually followed the Constitution. Indeed, the Constitution has been amended 27 times.
The attempt to thwart the Constitution got a big push from Franklin Roosevelt in 1937. The country was mired in depression and Roosevelt believed only a great expansion in federal power could save the country.
Roosevelt had one big problem. The members of the U.S. Supreme Court, following 160 years of precedent, ruled that Roosevelt did not have the authority to implement the New Deal under our Constitution, which limits federal power.
This is where Roosevelt turned into a bully. He so believed in his liberal policies that he ignored the Constitution and attempted to “pack” the court.
Since the Constitution doesn’t specify how many judges can serve on the Supreme Court, Roosevelt wrote the Judiciary Reorganization Bill of 1937 which gave him the power to appoint six new Supreme Court judges. It was an unprecedented power grab by the president of the United States. The judges caved and allowed the New Deal, relying on such vague terms as “providing for the general welfare” and “regulating commerce.”
This undid the essence of our Founding Fathers, which was to create a united states with limited federal power, leaving most governance to the individual states.
There is a legal way to amend the Constitution. By a two-thirds vote, Congress can propose amendments which then must be ratified by three-fourths of the state legislatures.
But this threshold has proven too high for those impatient to use the centralized power of the federal government as an agent for social change. So now we have a “living Constitution” that changes based on the political whims of the U.S. Supreme Court. The founding fathers are no doubt rolling in their graves.
On the plus side, we have the oldest constitution that still exists in the world today. Some countries have changed their constitutions dozens of times.