Yes, the Constitution still matters (Part 2)

Guest post by Joshua Charles, responding to Time magazine’s Managing Editor Richard Stengel and his recent attack on the U.S. Constitution. (Read Part 1 here.)

Of Chimera’s and Unicorns…

“If the Constitution was intended to limit the federal government, it sure doesn’t say so…limited government indeed.”

Richard Stengel, TIME Magazine Managing Editor

“The powers delegated by the proposed Constitution to the federal government, are few and defined.”

James Madison, Federalist No. 45

If it wasn’t so deadly serious, this assertion by the head boss of one of America’s premier media organizations (remember, Jefferson preferred having newspapers to government…) would be cause for a good laugh. But it isn’t funny, and it is serious. Contained within this statement, and the adjoining explanation of it by Stengel, is quite simply one of the most confused, and yes IGNORANT utterances on American government I have ever read. The thought process by which it is justified can end in nothing but tyranny, and those who would so quickly acquit themselves of the consequences of such confused ideas of government, let alone American government, would be wise to carefully consider it themselves. But first, let’s look to Stengel’s evidence that his statement is true.

Every American should know Article I, Section 8 of the Constitution of the United States. In it, the legislative power of the United States Congress is enumerated and defined. While of course, there are a great number of laws that can be made under these 18 clauses, Stengel seems to find the idea that since there are 18 then the Constitution could not possibly have been intended to establish a “limited government.” How preposterous! You’ll forgive the time and space devoted to this subject, but this is one of the Achilles’ heels of Stengel’s entire piece, and indeed of anyone who scoffs at the idea of “limited government,” and if it is broken, everything else he argues nearly falls apart.

Assuming for the moment that we’re not really concerned with limited government, I’m sure we’ll find plenty of things in the Constitution that would allow the Federal government to do just about whatever it wants. So, let’s take a peek at Article I, Section 8 of the Constitution, shall we? Seven clauses are directly related to national defense (clauses 10-16). Down to 11 (that was quick…). One clause is indirectly related to defense (clause 1…taxation as a means by which to provide for the “common defense”), but, since it includes things like “pay for the debts” and “general welfare” in it, we’ll say that as far as putting it in the “defense” category, we’ll add ½ rather to our total. Now at 7½ clauses for defense, ½ for everything else that might satisfy the salivations of even the most “unlimited” Progressive.

Moving right along, we see that clauses 2, 4-9, and 17 relate to several miscellaneous features of government which have been shared by pretty much every government in the modern era, if not most of human civilization (I would include clause 3, the infamous “commerce clause,” but just to be nice, I’ll leave it alone for now...). This would include things like borrowing money (clause 2), immigration laws (clause 4), coining money and regulating its value (clause 5), nabbing those pesky counterfeiters (clause 6), building roads and post offices (clause 7), patents and copyright protection (clause 8), the structure of the court system (clause 9), and making sure that everyone knows Congress is the ultimate authority in that small portion of land known as Washington DC (clause 17).

Okay, so down to 7½ for defense, 8 for all that normal government stuff, and ½ for everything else that is “unlimited.”

Clause 3 is the “commerce clause” under which the Obama administration has argued that Congress has the authority to compel each and every American citizen to purchase health insurance. For the sake of argument (and making it easier on Mr. Stengel no less), let’s include this clause in the “unlimited category.” Additionally, Mr. Stengel includes as part of the defense of his argument clause 18, otherwise known as the “necessary and proper clause.” Again, simply for the sake of argument, I will allow him this.

So we now have three categories of this great charter of Progressive government known as Article I, Section 8. THREE. Defense, normal government functions, and everything else for the sake of the “general welfare” that may be “necessary and proper.” Hmmm…let’s tally it all up just to make sure, because I know 18 is a really big number, too big in fact to ever have been intended to establish a “limited government.” So, FINAL TALLY: 7½ clauses for defense, 8 clauses for normal government stuff (law and order, the like), and 2½ for all that “unlimited” stuff. Hmmm…this can’t be right. Government can’t possibly have three basic functions, that’d be rather limiting, don’t you think? And clearly the Founders never, and certainly not the Constitution, were concerned with “limited” government. Those 2½ clauses must be where the saying “a lot of bang for your clause” came from.

Indeed, just about the only gray area that is left to those such as Mr. Stengel are the “general welfare” part of clause 1, and clause 18 (the “necessary and proper clause”). Apparently the “regulate interstate commerce” part of clause 3 is a gray area for others as well as of late, but for the time being, we’ll concern ourselves with these two clauses.

There is obviously some gray in the Constitution, but as we saw earlier, Mr. Stengel seemed to think that merely because there are 18 clauses in Article I, Section 8 of the Constitution, a “drumroll of congressional power” as he puts it, then that could not have possibly mean that the Constitution established a “limited” government. But upon closer examination, only 2½ clauses really having anything truly a little gray in them (but that includes the Commerce Clause, for the benefit of Mr. Stengel). And while Mr. Stengel argued that this grayness rests on the “necessary and proper clause,” he is again wrong.

Alexander Hamilton noted in Federalist No. 33 (part of a publication of newspaper articles I would suggest is far more worth everyone’s time to read than TIME Magazine) about the “necessary and proper clause”:

“If there is anything exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless…and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, or if they were repeated in every article.”

Oh really? So, if we take Publius at his word for now that the “necessary and proper” clause is, for all intents and purposes, useless in terms of the Constitutional operation of the Federal government, then what is Mr. Stengel left with? We’re down to 1½ clauses that are unclear, so apparently these are the clauses on which Stengel so courageously declares “limited government indeed” about the Constitution. So what are these clauses? Well, one is the commerce clause, the other is only a part of clause 1 of Article I, Section 8, in which it says that taxes can be imposed by Congress for “the general welfare” of the United States. I shall address the issue of the commerce clause at a later time.

So, we are left with two words “general welfare,” two words upon which Mr. Stengel must logically base his argument that the Constitution did not intend to setup a “limited government,” since everything else is, well, pretty well defined. I mean, how exactly can you argue for a welfare state from the clauses on defense (10-16)? How exactly can you argue for government redistribution of wealth based on clauses 2, 4-9, and 17? These are simply the normal features of nearly every government on earth in human history, at least in modern times. If the Founders really felt that they weren’t establishing a limited government, or if the idea of limited government shouldn’t still be important to us today, why on earth would they feel it necessary to specifically inform Congress that it has the power to (drumroll)…legislate on those most basic features of civilization? You know, roads, coining money, making sure everyone is using the same ruler and standards of weight, rules for the court system, etc.?

And, if as Publius says the “necessary and proper” clause ultimately derives any and all power it has based on the preceding powers (written as the “foregoing powers” in the Constitution), and has NO power in and of itself, we are left with everything that Mr. Stengel could possibly justify as not intending to limit government being found in two words: “general welfare.” This is the best that any Progressive can do. This is the best that any advocate of “big government,” as it is colloquially known, can achieve via the Constitution (is it becoming clearer why they hate it so?). Here again, it seems that I am not only in good company in such thinking, but that Mr. Stengel seems to have been ignorant of the very Founders he deems himself an expert on, for James Madison writes in Federalist No. 41, on this very clause (“general welfare”) this:

“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 … 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?”

Later in his life, he also wrote the following in a letter to James Robertson from 1831:

“With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

One must seriously wonder if Mr. Stengel has in fact examined any of the “host of proofs” of the Founders’ intents. All of Article I, Section 8 has 429 words. Mr. Stengel apparently hinges all his hopes (and incidentally his argument) on two. To use Mr. Stengel’s phrase, how limited indeed.

Joshua Charles is co-author of The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century.