Constitution 101

The Republican rediscovery of the Constitution's principles of limited government has prompted push-back from the left, who argue the document actually provides for considerable state intervention Their arguments typically rest on three provisions:

• The Commerce Clause
  
• The Necessary and Proper Clause
  
• The Taxing and Spending (General Welfare) Clause

Let's take these one by one. The Commerce Clause reads as follows:

The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

In the leftist interpretation, such language grants Congress the power to regulate commerce with foreign countries, Indian tribes -- and any aspect of our lives that is even tangentially related to commerce. This is, suffice to say, rather dubious both from a perspective of common sense and historical context. Common sense tells us that it is highly unlikely that the authors of the Constitution would grant sweeping powers to Congress in a clause dealing with the regulation of foreign trade, as it would seem to be deserving of its own clause and would defeat the purpose of a document with specific enumerated powers.

Historical context, meanwhile, really puts the sword to this silly narrative. The Constitution, it should be remembered, was written and enacted as a response to the failed Articles of Confederation. Among the Article's shortcomings was the failure to establish a common trade policy among the 13 original states, with the result that trade barriers such as tariffs were levied between them. The need to avoid this and the experience of several European countries was cited by James Madison in Federalist no. 42 as a justification for the commerce clause:

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual.A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.

Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

...The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

Put more simply, a shortcoming of the Articles of Confederation was the inability to prevent trade barriers between states, which has upset a lot of people. This experience, as well as those of a number of European confederations such as Switzerland, the Netherlands and Germany (to a lesser extent) -- which prohibit such trade barriers within the countries -- demonstrate the wisdom of granting such regulatory authority to the federal government.

This also makes apparent why the portion regarding commerce between states would be inserted into a clause dealing with foreign trade.

The Necessary and Proper Clause, meanwhile, says the following:

The 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.

In other words, Congress can make laws designed to help it carry out the powers it has been granted. Paired with the Commerce Clause, it has been widely cited by the left as justification for government expansion, including a number of New Deal initiatives.

However, it is notable that when those opposed to the Constitution's ratification warned that the clause would be interpreted as granting overly broad powers to the government, supporters countered this was not the case and that such a reading was overstated:

The clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton spoke vigorously for this second interpretation in the Federalist Papers as part of his argument for why the federal government required the powers of taxation.

At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a "dead letter". At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty.

While one can perhaps make the case that history has proven then Anti-Federalists correct, the more salient point is that nobody at the time made the argument this clause granted the government sweeping authority. That is highly instructive.

Lastly, the Taxing and Spending (General Welfare) clause:

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.

In leftist lore, this provides Congress with the authority to do anything deemed to be in the pursuit of furthering the country's general welfare. Again, let's turn to Madison, this time in Federalist no. 41, for the intended meaning:

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.

In other words: this obviously doesn't give Congress the power to do whatever it sees fit, otherwise why would we have bothered with specific enumerated powers?

An honest reading of the Constitution reveals a document that suggests the federal government has overstepped its bounds. A genuine debate over what this document means and its implications is not one the left should look forward to.