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| Under our Constitution, the federal government has delegated, enumerated and thus limited powers. Power is delegated by the founding generation or through subsequent amendment (that makes it legitimate); enumerated in the constitution (that makes it legal); and limited by that enumeration. As the 10th Amendment says, if a power hasn’t been delegated, the federal government doesn’t have it. For 150 years, that design held for the most part. When faced with a welfare bill in 1794, for example, James Madison, the principal author of the Constitution, rose in the House to say that he could find no constitutional authority for the bill. A century later, when Congress passed a similar measure, President Cleveland vetoed it as beyond Congress’ authority. That all changed during the New Deal as both congress and the president sought to expand federal power. When the Supreme court objected, rather than amend the Constitution, Franklin D. Roosevelt tried to pack the court with six additional members. The scheme failed, but the threat worked. Thereafter, the court started reading the Constitution’s General Welfare and Commerce Clauses so broadly that the doctrine of enumerated powers was essentially destroyed—and with it limited government. | Indeed, it was the enumeration of powers, not the enumeration of rights in the Bill of Rights, that was meant by the Framers to be the principal limitation on government power. | [T]he vast regulatory structure the federal government has erected in the name of the commerce power cannot be ended overnight, in many cases, but the pretense that such programs are constitutional can be ended, even as the programs themselves are phased out over time. | Today, of course, the redistributive powers of Congress are everywhere -- except in the Constitution. The result is the feeding frenzy that is modern Washington, the Hobbesian war of all against all as each tries to get his share and more of the common pot the tax system fills. ... It is unseemly and wrong. More than that, it is unconstitutional, whatever the slim and cowed majority on the New Deal Court may have said. | Unfortunately, over the course of this century Congress has largely ignored the constitutional limits on its power. And the courts, especially after Franklin Roosevelt threatened to pack the Supreme Court with six additional members, have only abetted the resulting growth of government by fashioning constitutional doctrines that have no basis whatever in the Constitution. As a consequence, many of the programs Congress oversees today are without constitutional foundation, having resulted from acts that Congress had no authority. | Over the 20th century, the federal government has assumed a vast and unprecedented set of powers. Not only has the exercise of those powers upset the balance between federal and state governments; run roughshod over individuals, families, and firms; and reduced economic opportunity for all; but most of what the federal government does today -- to put the point as plainly and candidly as possible -- is illegitimate because done without explicit constitutional authority. The time has come to start returning power to the states and the people, to relimit federal power in our fundamental law, to restore constitutional government. | The growth of federal power and programs over this century -- involving the regulation of business, the expansion of "civil rights," the production of environmental goods, and much else -- has taken place in large measure through the power of Congress to regulate "commerce among the states." That power has been read so broadly by the modern Court that Congress today can regulate anything that even "affects" commerce, which in principle is everything. As a result, save for the restraints imposed by the Bill of Rights, the commerce power is now essentially plenary, which is hardly what the Framers intended when they enumerated Congress’s powers. Indeed, if they had meant for Congress to be able to do anything it wanted under the commerce power, the enumeration of Congress’s other powers -- to say nothing of the defense of the doctrine of enumerated powers throughout the Federalist Papers -- would have been pointless. The purpose of the commerce clause quite simply, was to enable Congress to ensure the free flow of commerce among the states. Under the Articles of Confederation, state legislatures had enacted tariffs and other protectionist measures that impeded interstate commerce. To break the logjam, Congress was empowered to make commerce among the states "regular." In fact, the need to do so was one of the principal reasons behind the call for a new constitution. |
Roger Pilon Quotes 1-7 out of 7
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