The Right’s Made-up Constitution
From the Archive: On the U.S. Constitution’s 230th birthday, many Americans don’t realize that the document actually gives the federal government broad powers to provide for the nation’s welfare, as Jada Thacker noted in 2013.
By Jada Thacker (Originally published on July 6, 2013)
The Cato Institute’s Handbook for Policy Makers says, “The American system was established to provide limited government.” The American Enterprise Institute states its purpose to “defend the principles” of “limited government.” The Heritage Foundation claims its mission is to promote “principles of limited government.” A multitude of Tea Party associations follow suit.
At first glance the concept of “limited government” seems like a no-brainer. Everybody believes the power of government should be limited somehow. All those who think totalitarianism is a good idea raise your hand. But there is one problem with the ultra-conservatives’ “limited government” program: it is wrong. It is not just a little bit wrong, but demonstrably false.
The Constitution was never intended to “provide limited government,” and furthermore it did not do so. The U.S. government possessed the same constitutional power at the moment of its inception as it did yesterday afternoon. This is not a matter of opinion, but of literacy. If we want to discover the truth about the scope of power granted to federal government by the Constitution, all we have to do is read what it says.
The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “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.”
As might be expected in a preamble to a founding document, especially one written under supervision of arch-aristocrat Gouverneur Morris, the terms are sweeping and rather grandiose. But the point is crystal clear: “to form a more perfect Union.” If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.
Article I establishes Congress, and Section 8 enumerates its powers. The first clause of Article I, Section 8 repeats the sweeping rhetoric of the Preamble verbatim. While it provides for a measure of uniformity, it does not so much as hint at a limit on the federal government’s power to legislate as it sees fit:
“The Congress shall have Power 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; but all Duties, Imposts and Excises shall be uniform throughout the United States”
No attempt is made here, or at any other place in the Constitution, to define “general Welfare.” This oversight (if that is what it was) is crucial. The ambiguous nature of the phrase “provide for thegeneral Welfare” leaves it open to widely divergent interpretations.
Making matters worse for federal government power-deniers is the wording of the last clause of Article I, the so-called “Elastic Clause”: Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses restated in the vernacular flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”
Lately there has been an embarrassingly naive call from the Tea Party to require Congress to specify in each of its bills the Constitutional authority upon which the bill is grounded. Nothing could be easier: the first and last clauses of Article I, Section 8 gives Congress black-and-white authority to make any law it so desires. Nor was this authority lost on the Founders.
“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance. Here is a sample from New Yorker Robert Yates, a would-be founder who walked out of the Philadelphia convention in protest, written a month after the Constitution had been completed:
“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. The government then, so far as it extends, is a complete one. It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”
Yates, it must be emphasized, took pains to identify the “necessary and proper” clause as the root of the “absolute power” inherent in the Constitution well over a year before ratification.
The Tenth Amendment
A particular darling of secession-prone, far-Right Texas Gov. Rick Perry, the Tenth Amendment is often claimed as the silver-bullet antidote for the powers unleashed by the “general welfare” and “elastic clauses.” Here is the text of the Amendment in its entirety: “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.”
Superficially, the Tenth seems to mean “since certain powers are not delegated to the federal government, then those powers are reserved to the states or the people.” This would seem to be good news for champions of limited government. But this is not the case.
The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.
As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress. The Johnny-come-lately Tenth Amendment closed the constitutional pasture gate after the horses had been let out.
This apparently has never occurred to the likes of Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation. Superficially, the logic of this position seems sound: if the states had the legal authority to delegate power, then they may use the same authority to “un-delegate” it by law.
But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say the states delegated their powers to the federal government although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution are reserved to the States. ”
Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. States, in other words, now have no standing to “reserve-back” what they had never “delegated-away” in the first place.
Had it been possible to “un-delegate” the powers of the United States by invoking the Tenth, the Old South would have simply done so and spared itself the bother of secession not to mention the bother of being annihilated by a series of subsequent Northern invasions. The fact that the South did not even attempt such a strategy attests to the toothlessness of the Tenth Amendment.
No other instance in law would be a better example that we should choose our votes carefully. For in ratifying the Bill of Rights, which included the Tenth Amendment, the American people endorsed the legal fiction that the Constitution not the original 13 states, or “We the People” authorized the power of the United States because the Constitution itself said so. If the Constitution has an Orwellian twist, this is it no matter which side of the aisle you’re on.
The states and the people may amend the Constitution. But they may not do so by nullification (according to the logic inherent in the wording of the Tenth Amendment), or by the judgment of state courts (according to the “supremacy clause” of Article VI), nor may any Amendment be made without the participation of the federal government, itself (according to Article V.) If the Founders had meant to ensure “limited government,” there is no trace of such intent here.
Paucity of Rights
If the Constitution were intended to provide “limited government,” we might expect it to be chock full of guarantees of individual rights. This is what Tea Partiers may fantasize but this is not really true. In fact, the Constitution is amazingly stingy in reference to “rights.”
The word “right” is mentioned only once in the Constitution as ratified. (Art. I, Sec. 8 allows Congress to award copyrights/patents to ensure their holders “ Right to their respective Writings and Discoveries.”)
The word “right” somewhat counter-intuitively appears only six times in the ten Amendments called the “Bill of Rights.”
Almost a century later, the first of seven other rights were added under pressure from Progressive activists almost all of which were intended to create and extend democratic participation in self-government.
Amendment XIV (sanctions against states denying suffrage); XV (universal male suffrage); XIX (women’s suffrage); XXIV (denial of poll tax); and XXVI (18 year-old suffrage); and twice in Amendment XX, which gives Congress the “right of choice” in presidential succession.
In grand total, the word “right” appears only 14 times in the entire Constitution, as it exists today (including the two rights conferred to government).
Did we all notice that the “Constitution of the Founders” did not include the “right” for anybody at all to vote? Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which apparently unbeknownst to Tea Partiers everywhere bears no force of law.
The word “power,” by the way, occurs 43 times in the Constitution, each time referring exclusively to the prerogative of government, not right-wingers. Since “individual” rights are mentioned only 12 times, this yields a ratio of about 4:1 in favor of government power over individual rights. Without the efforts of those pesky, democracy-mongering Progressives, who fought for universal voting rights, the ratio would be more than 6:1 today or 50 percent higher.
This statistical factoid is not as trivial as it may appear. Expressed in practical terms, Michele Bachmann, Sarah Palin or Clarence Thomas would almost certainly never have achieved public office had they lived under the “limited government” designed by the Founders they so revere.
The Bill of Rights
So what exactly are our non-patent/copyright “rights,” under so-called “limited government?”
Amendment I the right of people “peaceably to assemble, and to petition the government for redress of grievances”
Amendment II the right “to keep and bear arms, shall not be infringed”
Amendment IV the right “to be secureagainst unreasonable searches or seizures”
Amendment VI the right “to a speedy and public trial”
Amendment VII the right “of a trial by jury”
Amendment IX enumeration “of certain rights” shall not deny “others retained by the people”
That’s it. What happened to the famous rights of free speech, religion or press? The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon. If Bill of Rights author James Madison had meant to stipulate them as positive “rights” all he had to do was write it that way, but he did not.
Bear in mind Madison (then a federalist) wrote the Bill of Rights under political duress. Since anti-federalists (recall the skepticism of Robert Yates) flatly refused to ratify the Constitution unless it guaranteed something, Madison had to write something. In effect, the amendments were the pig the anti-federalists had bought in the poke, three years after ratification had paid for it.
Madison, at the time of writing, had little incentive to take pains with what he wrote because federalists did not believe a Bill of Rights was necessary, or even good idea (with Alexander Hamilton arguing a Bill of Rights would be “dangerous.”) This may account for the fact that some of what Madison wrote seems vague, or even ambiguous, as in the case of Amendment II.
Amendment IX, for example, actually makes little sense, which may account for the fact nobody ever seems to mention it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This sounds “righteous” enough, until we recall the Constitution to which this Amendment pertains had “enumerated” only a single right in the first place! Even if Amendment IX applies to the Bill of Rights (to include itself), then all it says is “the people may have more rights than the half dozen mentioned so far, but we’re not going to tell you what they are.” (So if Amendment X is Orwellian, Amendment IX verges on Catch-22.)
Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.
And what sense should we make of the crucial Amendment V one of the four Bills of Rights not actually containing the word “right” at all?
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]
Thus, life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast. That is what it plainly says.
It is interesting, too, that the Bill of Rights does not speak to the origin of rights, but only to their existence. Moreover, the Constitution never speaks of granting rights, but only protecting them. There is a good reason for this: excepting the Progressive suffrage Amendments, none of the guaranteed rights were American inventions, but had for centuries been considered the rights of the English nobility.
For those who want to believe in “American Exceptionalism” as the basis of “limited government,” this is not encouraging news. Moreover, the Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece.
Property Rights and ‘Republic’
The strict libertarians among us claim the sole legitimate power of government is that which is necessary to protect private property rights. On this score, however, the “limited government” of the Founders is practically mute. Except for the aforementioned Article I, Section 8 provision for patents and copyrights, private “property” is only mentioned twice in the Constitution, both times in a single sentence of the “right”-less Amendment V quoted above:
“No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]
Once again, Amendment V fails to guarantee personal immunity from the power of the state, but rather details the way state power may be used to dispossess individuals of their property. And we must bear in mind these words were not penned by Marxists, socialists, or Progressives.
Whether by design or happenstance, the original “Constitution of the Founders,” or the Bill of Rights, or even the Constitution with all its Amendments does not grant any irrevocable “right of possession” to property. Even the Second Amendment’s “right to keep” arms, is subject to the terms by which property may be taken under terms of Amendment V, and it always has been.
Tellingly, the word “democracy” does not appear in the Constitution. This intentional oversight is often smugly celebrated by anti-democrats among us, who insist that the United States of America was founded as a “republic.” No doubt this is true, given that the Constitution was written by an exclusive, hand-picked cadre of oligarchs, whose number did not include a single woman, person of color, or wage-earner.
Unfortunately for the pro-republic “limited government” crowd, the Constitution does not contain the word “republic” either. The word does appear as an adjective, but only once, (Article IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion”
Typically for the Constitution, which defines few of its terms, the word “Republican” also remains unexplained. The ambiguity of the term turned out to be handy, however, as Radical Republicans continuously and egregiously violated Article IV, Sec. 4 from 1865-1877 as they enforced blatantly unconstitutional military occupation of former Confederate states during the gross misnomer of “Reconstruction.”
It should be obvious that the “Constitution of our Founders,” including the Bill of Rights, may not protect as many rights as many wish to believe. Moreover, we have already noted the Constitution dropped all revolutionary talk of “unalienable” rights and “Creator endowed” liberty. This was not an oversight.
The revolutionary bit about “consent of the governed” posed an especially delicate problem for the Founders. Almost all owned slaves or were masters of property-less tenants or domestic servants, including their wives none of whom could offer their legal consent even if they wished to do so. Thus the Founders shrewdly considered it unnecessary to include any voting rights in the new republic they planned to rule, uncontested by the disenfranchised lower castes.
Did this result in the land of the free, with liberty and justice for all? Let’s see.
Under the U.S. Constitution, Americans were sentenced to death for protesting unfair taxes; journalists and citizens imprisoned for criticizing government officials; citizens’ property seized illegally; workers murdered by government agents; thousands jailed without the “privilege” of habeas corpus; entire states deprived of civilian courts; untold numbers of American Indians defrauded of liberty and property; debt-peonage and debtors’ prisons flourished, as did slavery and child labor; and the majority of the public was denied the vote.
All this was considered constitutional by the Founders. None of these outrages, please note, was the result of “progressivism,” which had yet to be articulated, and all were common prior to the New Deal and the advent of so-called Big Government. Was this the face of “limited government?”
No, it was not. The concept of a democratically “limited government” was not for a moment entertained by our Founders, nor is it by those who idolize them today. With few exceptions, the Founders were Eighteenth Century patricians who took a revolutionary gamble meant chiefly to perpetuate their privileges, free from English colonial overlord-ship. It should come as no surprise these elitists drafted a Constitution that posed no threat to aristocracy.
‘Limited Government’ as Act of Faith
The original Constitution of the United States of America was just so much ink on paper. The Constitution, as it stands today, is just a lot more ink on paper.
But the Constitution’s ink is important and deserves respect because it represents nothing less than the collective civic conscience of the American people. A great many Americans have dedicated their lives in trust to that conscience on battlefields, in classrooms, in everyday civic life, and even a few in the halls of power.
It is evident that most of the Amendments to the original Constitution as well as the Supreme Court’s decisions interpreting its scope and purpose were made because the document had over the course of time been found wanting by the American people, whose common interests it was not originally intended to serve. As the collective civic conscience of the people changed, so too did their interpretation of self-government.
But the entire concept of social evolution (much less biological evolution) is something the ultra-Conservative rank-and-file likely does not comprehend and it is not something their leaders encourage them to consider. The reason for this may have less to do with politics than with fundamentalist faith.
An anecdote in point: the editor-in-chief at Random House once asked the extremist libertarian Ayn Rand if she would consider revising a passage in one of her manuscripts. She reportedly replied, “Would you consider revising the Bible?”
Ergo, that which is sacrosanct neither requires nor will tolerate change to include the fantasized “limited government” of the immortalized “Founding Fathers.” The fact that Rand was a noted atheist only underscores the point that fundamentalist faith is not restricted to any particular brand of fanaticism.
Yet the Constitution’s conception was anything but immaculate. It was not carted down from the Mount in tablets of stone, nor is it the product of some mysterious Natural Law interpretable only by libertarian gurus. And whether its meaning is best exemplified by the Tea Party flag depicting a talking snake (“Don’t Tread on Me”), perhaps only Eve could judge with authority.
The Constitution is not a holy book, and there is no good reason for anybody to treat it like one. The men who wrote it were not prophets, nor were they particularly virtuous, though some could turn a pretty phrase. In fact, the Constitution’s most unholy-book characteristic is its most welcomed attribute: its readers are not required to believe in its infallibility in order for it to make sense to them.
But we are required to read the Constitution if we want to know what it says. The ultra-conservatives’ obsession with a constitutionally “limited government,” which has never actually existed, suggests they do not understand the Constitution as much as they merely idolize it.
These constitutional “fundamentalists” along with the American public in general would do better to pick the document up and read it sometime, not fall on bended knee before it and expect the rest of us to follow their example.
Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: email@example.com