Wednesday, September 16, 2009

The Perilous Ambiguities in the Constitution

The rectangle of light in the acres of a farm was the window of the library of Judge Narragansett. He sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: “Congress shall make no law abridging the freedom of production and trade….”*

Writing about the presumption and power of Congress to enact health-care legislation, Andrew P. Napolitano in his Wall Street Journal article “Health-Care Reform and the Constitution” (Sept. 15) states unambiguously that the power is non-existent -- that is, that the power is not one of the enumerated powers granted to Congress. It is irrelevant, he states, that politicians, and even the Supreme Court, believe that the term regulate means control of the movement or existence of commodities and services via taxation, quotas, or any other species of interventionism across state lines or within them.

Napolitano limits his article to the subject of health insurance and why it is not “regulated” by Congress. He notes that all fifty states prohibit the sale of such insurance across state lines, e.g., a company or broker domiciled and licensed in Virginia being prohibited from selling policies in Maryland, unless the company is also domiciled and licensed in Maryland to sell much the same product. He then holds forth the specter of Congress simply nationalizing or socializing the whole business and “regulating” it on federal terms by making health insurance compulsory, with the ultimate “single payer” bureaucracy domiciled in Washington.

He opens his article with an interesting and revealing exchange he had with a South Carolina representative, whom he challenged to show him where in the Constitution the power was granted to the government to regulate the delivery of health care.

He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Well, that would be an easy task, notes Napolitano, referring to the Ninth and Tenth Amendments and to the enumerated powers granted to Congress. Napolitano, however, was dealing with a thuggish mentality that will not be stopped by words that restrict his power to legislate any kind of “stuff” that comes to his mind. The former Superior Court judge argues for Congress to “regulate” the sale of health care insurance by prohibiting the states from controlling its sale across state lines (in the interests of free trade), perhaps on the premise that such an action would give Congress less of an excuse to nationalize health care. While this is a laudable aim, and certainly consistent with the intent -- or, rather, a rational understanding -- of the commerce clause, it overlooks the broader issue, which is the language itself.

The two most destructive phrases in the Constitution are destructive, not because they explicitly or intentionally contradict the principles underlying the document’s wording and otherwise explicit language, but because they are arguably ill- or undefined, and, to later generations of scholars and jurists, ambiguous and open to “interpretation.” Their ambiguity later permitted contradictory amendments to the Constitution together with legislation that all but rendered the Constitution a dead document, giving leave to presidents and Congress over the decades to advocate and enact a mammoth, costly, and liberty-destroying mountain of “stuff.”

These phrases are general welfare and regulate commerce.

Britannica cites “commerce clause” in the Constitution and the presumption and power in Article I, section 8:

“To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

And then makes this bald but true statement: “It is the legal foundation of much of the U.S. government’s regulatory authority.” Legal? Yes. Moral? No.

Concerning the “general welfare” clause, the Preamble of the Constitution reads:

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.

The Cato Journal notes:

Article I, section 8 of the Constitution confers upon Congress certain enumerated powers and a potentially more sweeping authority to provide for the general welfare, a goal also set forth in the Preamble. For proponents of a limited central government, the General Welfare Clause has been a source of great mischief. Interpreted elastically by constitutionalists of the "living document" persuasion, the Clause has helped serve up a gourmand’s feast of government programs, regulations, and intrusions that would have been unimaginable to the Framers. [Italics mine.)

I stressed elastically because better minds were not so elastic in their positions on the clause. Thomas Jefferson, for example, expressed his doubts about the meaning of “general welfare”:

“[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.“ [Writings of Thomas Jefferson ,Library Edition, 1904, 147–149.]

The clause, in short, notes the Cornell Law site, “is not an independent grant of power, but a qualification of the taxing power.” But, is it a “qualification of the taxing power” of Congress? Neither Jefferson nor any of his contemporaries go on to discuss the precise meaning of the phrase “general welfare.” That meaning has been a point of contention for over two hundred years, but a succession of statists in Congress has taken advantage of its ambiguity to lay taxes and enact regulations ad libitum for any purpose the South Carolina representative and his political ancestors and contemporaries have pleased.

James Madison, writing about the objects embraced by the power, noted that:

“no state be at liberty to impose duties on any goods, wares, or merchandise, imported by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.” [Madison’s resolution for empowering Congress to regulate trade, November 30, 1785]

Jefferson weighed in with:

“To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”

The Constitution site remarks, referring the best dictionary available to the Founders:

Samuel Johnson's dictionary defined "to regulate" as "1. To adjust by rule or method ... 2. To direct." This definition is supported by Chief Justice Marshall's noted description of the power to regulate as the power "to prescribe the rule by which commerce is to be governed." Chief Justice Melville Fuller later reiterated a similar formulation: "The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed." This formulation suggests that the aim of "regulation" must be limited to the governance of commerce, although Supreme Court jurisprudence is not uniform on this topic.

Edward Banfield (1916 – 1999), a political scientist, argued that the attempt to define the outer limits of national power, as Article I, Section 8 of the Constitution does, was likely a flawed enterprise, doomed to failure from the very beginning:

Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government — meaning government in accordance with the will of the people — and the maintenance of limits on the sphere of government.

Banfield blamed human nature, surely what the drafters of the Constitution had in mind, for eventual federal encroachments on individual freedom. But, half the blame can be laid to the ambiguity of the term regulate, and also to the clause general welfare.

Again, the term regulate is employed ambiguously. Did Marshall, Madison, Jefferson, and others mean that it empowered the government to regulate commerce through taxation or by quotas or by some other mode of intervention? Or did they imply the establishment of objective law, by which free trade among individuals and corporations would be protected from intervention? This ambiguity has never been resolved.

What was the purpose of the commerce clause? The Father of the Constitution, Madison, wrote the following:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." - Letter to Cabell, February 13, 1829.

But Congress has arbitrarily assumed the “remedial power” not only to “reform” health care but to “regulate” virtually every other realm of human activity in the United States. The solution to that “remedial power” is to dislodge it from Congress.

Joseph Story (1779-1845), Supreme Court justice and protégé of John Marshall, expressed the conflict succinctly in his Commentaries on the Constitution of the United States (1833):

Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. [Book 3, Chapter 15, § 1075.]

Story might have added, but unfortunately did not include in his warning, the demolition of all constitutional boundaries between government and the individual. This is an instance of how an ambiguity in crucial language can become perilous and destructive, even in the most well-intentioned and cogent statements. This is also why I have trouble granting credibility to statements such as that found on the Campaign for Liberty site, which is written from a sense of certitude, but not from a certainty that could be validated by subjecting it to rational scrutiny and explication:

Far from granting Congress the power to create the massive regulatory, central economic planning, nearly limitless government in which we live today... the Commerce Clause was intended to be a restriction on States, not a positive grant of power to Congress at all! Why then is it under "Powers of Congress"? Simple, the federal government has the power to resolve trade disputes among the states and essentially provide for free trade among the states. Perhaps no clause in the Constitution has been so perverted as the Interstate Commerce Clause.

Even though I would like to agree with that statement, I could not say with any conviction that this is what the commerce clause, or even the general welfare clause, means or that this is what the Founders meant and intended -- not without precise definitions of general welfare and regulate. Those two terms have been bonded together by statists into a poisonous, amphioxus sanction by collectivists and other enemies of freedom to the detriment of freedom.

What is needed is a Judge Narragansett to scour the Constitution and correct its debilitating and destructive amendments and to define its language with exactitude, so that a government instituted among men may better and absolutely “secure these rights” to the freedom of production and trade -- including the trade in health care, health care insurance, and every other voluntary transaction among individuals. Then, perhaps, predatory creatures like Napolitano’s South Carolina congressman would not dare contemplate -- indeed, he would be prohibited from -- abridging our rights and reducing our liberties with “stuff.”

*From Atlas Shrugged, p. 1168. New York: Dutton 35th Anniversary Edition.


Joshua Lipana said...


Joshua Lipana said...

Wonderful article Ed! I've been thinking about this issue for a while now. I'm glad to finally find an article as informative and as spot on as this.

Anonymous said...

Thank you for shining your intellectual beam on the Constitution and the two ill-defined phrases that undercut its protection of individual rights. It’s vital that it be understood, and your essay points to what must be dissected intellectually.

Excellent your pointing out that Joseph Story's worry over the demolition of the constitutional boundaries between state and federal should also apply to “the demolition of all constitutional boundaries between government and the individual.”

It makes me wonder if that concept that the Founders had, that the individual is THE entity to be protected from government by constitutional boundaries, was not well understood even by men who worked with the Founders.


Tom said...

This is an excellent article but I Think the Author should read "Hamilton's Curse". The commerce clause and the general welfare clause were no accident. Hamilton and others craftfully had those inserted like ticking time bombs that were later exploded by John Marshall. The Constitution needs to go.

Tom said...

Roxanne, many people confuse what "the founders" actually means. In fact, the people who signed the Declaration of Independence (which stands for individual rights) were NOT the same people who drafted the constitution.

The constitutional convention started out as simply a reform of the Articles of Confederation, but Alexander Hamilton and others made a push to completely scrap the AoC and invent a new government. Hamilton then proposed the same government as England except the King would be appointed by congress.

The usurpation of power and loss of individual rights so disgusted the original 50+ members of the convention that about 20 of them left and went home claiming that their states would never sign this new document. Unfortunately the PR campaign of Madison and Hamilton fooled people into believing the new constitution was built for freedom.

Anonymous said...

Tom noted: "This is an excellent article but I Think the Author should read "Hamilton's Curse". The commerce clause and the general welfare clause were no accident. Hamilton and others craftfully had those inserted like ticking time bombs that were later exploded by John Marshall. The Constitution needs to go."

I have read sections of "Hamilton's Curse" during slow times at the Colonial Williamsburg booksignings, and know about Hamilton's ploy. My focus, however, was not on Hamilton's machinations, but on the phraseology. From that one could ask "why?" and induce the ploy, but to have covered all that ground would have meant a 20-page post, which I was not ready to tackle (or even want to begin except as a short treatise). But, thanks to Patrick Henry and others, we at least got a Bill of Rights which, for a while, checked the growth of federal powers.

It's also my thesis (or suspicion) that Jefferson was appointed ambassador to France to get him out of the way of the Convention, but have not found any correspondence that would allow one to use that thesis as an argument. I'm sure that if he had attended the Convention, the AoC would have remained in force and the Convention would have adjourned in acrimony.


Anonymous said...

amphioxus? amphigorous perhaps?

Anonymous said...

Anonymous asked: "Amphioxus? Amphigorous perhaps?"

To convey the destructiveness of their ambiguity (the terms general welfare and regulate), that it's one or the other or even both, and that by being employed by statists, they as sanctions assumed a dagger-like sharpness. I chose "amphioxus." "Amphigorous," on the other hand, would have implied the terms were nonsensical, which they certainly are not, but are to be taken very seriously as sanctions for statists to govern one's life.



Slade Calhoun said...

I believe it was the great moral philosopher Groucho Marx who asked, "Why can't people just leave other people alone?" The only world where that could happen would be one that respected liberty and property rights, as a start. The Constitution was a great step in that direction. But in today's context I question the utility of proving that it means this or that. The statists that currently educate and run our country would merely say, "OK. You've proved that the Constitution is a document that defends liberty and property rights, essentially by limiting government. Let's scrap it."

Anonymous said...

Notwithstanding Ed's excellent analysis, Dan Hannan, the British MEP [Conservative] gives his view on the US Constitution-
"The most sublime constitution ever drafted... "