Answering the John Birch Society
The John Birch Society recently published sixteen questions about an Article V Convention of States. Below is our answer to their first question. You can read the rest of them here.
What ails America? Is it our Constitution or our Congressional, Presidential, and bureaucratic non-compliance with the Constitution?
The central problem with American government is the belief that the purpose of government is to provide for our needs. Washington, D.C. carefully nurtures this belief because it serves its own prime purpose—the aggregation of federal power. Accordingly, Washington, D.C. has gradually amassed overwhelming power that is clearly outside of the boundaries that the Framers intended when they wrote the Constitution.
This improper aggregation of power crisis, in fact, arises indirectly from the Constitution itself. The Constitution permits the federal judiciary to be the final interpreter of the Constitution. Because the Framers did not have any meaningful experience with the practice of judicial review, they did not construct adequate checks and balances vis-à-vis the judiciary.
Accordingly, the Constitution, as interpreted by the Supreme Court today, is in fact the problem. This interpreted Constitution allows runaway spending, undeclared wars, government agencies spying on the citizens, massive debt that will impose economic slavery on our children, rule by executive order, coercive medical insurance, and the rise of a dominating bureaucracy.
All of these things are constitutional according to the Supreme Court or lower federal courts. Moreover, the two most abused provisions of the Constitution have been amenable to abuse because they were not written tightly enough to effectively implement the drafters’ intentions. The Interstate Commerce Clause was intended to allow Congress to set the rules for interstate shipping. As interpreted, it allows Congress to regulate virtually any part of our lives that has a dollar sign attached to it.
The General Welfare Clause as interpreted allows Congress to tax and spend for any fool thing that Congress desires. Madison’s view of the General Welfare Clause (which was shared by a majority of the Framers) was that the General Welfare Clause was not a grant of spending power at all. It was a limitation on spending. Madison believed that when Congress used its other enumerated powers to spend, it had to do so in a manner that truly promoted the welfare of the nation (“the general welfare”), as opposed to the welfare of a specific locality or a small group of individuals.
The Hamilton view of the General Welfare Clause was famously adopted and explained by Joseph Story in his seminal work on the Constitution. It was Story’s version of this Clause that caused the Supreme Court to initially adopt this approach in United States v. Butler, 297 U.S. 1 (1936). Story explained that while the General Welfare Clause did contain an additional grant of power to tax and spend, it was subject to two important limitations. First, expenditures should be for the national interest, not local or personal interests. Second, this Clause was subject to the first resolution adopted in the Constitutional Convention—that this Constitution was adopted solely for areas where the States possessed no jurisdiction. In other words, if the States could spend money on a particular subject, Hamilton and Story thought that Congress could not spend money for that purpose under the General Welfare Clause. States can, if their State constitutions permit, spend money on education, welfare programs, medical programs, and retirement programs. Accordingly, Congress has no jurisdiction under the General Welfare Clause to spend money for any of these purposes.
All of the entitlement spending that is bankrupting this country would be unconstitutional if we faithfully followed either Madison’s or Hamilton’s view. All federal mandates imposed by Congress on the States would likewise be unconstitutional.
Accordingly, our task is to do two things to fix these constitutional problems. We need to write very specific language that clarifies and adjusts the Commerce Clause and the General Welfare Clause according to their original meanings. Moreover, we need to put proper checks and balances in place to ensure that the federal judiciary no longer has the ability to legislate from the bench.
We should make other course corrections as well, because the Constitution as interpreted contains other serious flaws. The Framers made all treaties the supreme law of the land. However, the Framers understood the treaty power to reach only the subject of how nations treat other nations—not how our own nation interacts with and governs our citizens. Today, however, treaties are viewed as capable of controlling the internal law of the United States. This error must be definitively corrected.
Likewise, the taxing power in the Sixteenth Amendment is dangerous and needs to be changed.
Executive orders and administrative regulations have been allowed to become law even though Article I, Section 1 declares that all federal laws must be passed by Congress. The current interpretation is unacceptable and must be corrected.
Experience has taught us that the Constitution as interpreted has allowed the abuse of both federal power and the rights of the people. We need to correct these erroneous interpretations and constrain the power of the federal judiciary to make activist interpretations in the future.
George Mason knew that it would take constitutional changes to return the government in practice to the government the Framers intended to give us. And he knew that Washington, D.C. would never propose such changes. He was right on all counts.