Constraints on the Feds
Regular reader Kevin Corcoran sent me the following. I’m posting with his permission and then I’ll add my own thoughts.
While I was out on vacation last week, I had the opportunity to try some new craft beers. In general, this is a wonderful time to be a person who enjoys beer–the varieties of craft beer and number of local breweries have skyrocketed over the last few years. But, because I’m me, I couldn’t just enjoy some of the local offerings without having thoughts about the nature of government and freedom, and the following thought occurred to me.
Isn’t the 18th amendment remarkable?
You might take that to mean I think it’s remarkable that it was possible to get the support needed to pass a constitutional amendment banning alcoholic beverages in the United States–and that certainly is remarkable in its own right. But I have a different take on it. It’s remarkable because it illustrates the degree to which lawmakers used to be constrained by the constitution, and how little of that constraint is present today.
Madison once described how the Constitution would limit the power of the federal government with these words: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which the last power of taxation will, for the most part, be connected.” And, for a while at least, the powers of the federal government really were few and defined and focused in the way Madison advocated. That was enough the case that if the federal government wanted to ban the use of a mind-altering drug like alcohol, it lacked the authority to do so, because controlling what substances people were able to ingest was not among the “few and defined” powers enumerated in Article I Section 8 of the Constitution. For the federal government to pass such a law, and for that law to be consistent with the Constitution, the Constitution would need to be amended – and it was.
These days, instead of amending the Constitution to allow for whatever new powers are believed should be given to the federal government, we seem to have fallen into a system where the courts interpret the enumerated powers in the Constitution so broadly that limitations have all but ceased to exist in practice. This is perhaps most infamous in the Wickard v. Filburn case, where the Supreme Court interpreted the federal government’s power to regulate interstate commerce in Article I, Section 8, Clause 3 so broadly that a person growing his own food to feed his own animals, and who did not sell that food to anyone, across state lines or otherwise, was still engaging in an act of “interstate commerce” by doing so, and under the authority of the federal government. With court rulings broadening federal authority so much, why spend the time on persuasion and debate to build the broad consensus and support necessary to amend the Constitution anymore?
It used to be that if the federal government wanted to control alcoholic beverages, the Constitution needed to be amended to allow it. Now, it’s just taken as given that of course the federal government has the authority to control just about every aspect of what people can consume, food, drug, or otherwise–no Constitutional adjustment needed. I prefer the old system. Alas, I don’t know how to get back there from here.
His thoughts led to 4 of my own.
First, while I share James Madison‘s view of the U.S. Constitution, not everyone at the time, even those who put it together, did. As my economic historian friend Jeff Hummel put it to me once, the U.S. Constitution was a compromise. It was the most statist the statists could get. And it was the most pro-limited government the limited government people could get. In short, it was an equilibrium. That’s how to understand vague things like the first few words of Article I, Section 8:
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; (italics added).
Second, notice how selective the Madison view was even before Prohibition. The Harrison Act, which regulated drugs such as cocaine and opium, was passed in 1914. The players who were victorious didn’t seem to think that they needed a Constitutional amendment to do so. Although, to be fair, I should note that they did it in the form of a tax, which Congress had the power to do.
Third, back to Madison’s, Corcoran’s, and my view, I’ve often wondered how so many Constitutional lawyers, even those who seem to share Madison’s view, can justify the federal government having any role in immigration. I’ve never received a satisfactory answer. A few years ago, I was at a conference in which I had a chance to ask a question about that. I can’t tell you the name of the law professor because the proceeds were conducted under the Chatham House rule.
I asked, “Where in the U.S. Constitution do you find support for either the President or Congress having a role in immigration law?”
I was shocked by his answer because he didn’t even try to answer. Instead, he painted a picture of what it would be like to have no federal role in immigration. Whether or not his dire picture was accurate, he seemed to think that was grounds enough for the federal role. Because of the rules at the time, I didn’t get a follow up.
Fourth, Kevin’s thoughts reminded me of something I read about Biden in the summer of 2008, shortly after Obama chose him as his running mate, and how it contrasted with FDR.
A reporter reported that because Biden regularly took Amtrak, he would almost certainly push to increase the subsidy for Amtrak. The reporter wrote this matter of factly, as if such a conclusion were obvious. It was obvious, but only because of the weakening of the belief in limited government.
Contrast this with Franklin D. Roosevelt, who was not exactly a believer in limited government. FDR had polio, starting in 1921. He became president in 1933 and was president until his death in 1945. He founded the March of Dimes in 1938 to help people with polio.
Think about that. While being the most powerful U.S. president in history up until that point, he founded a voluntary organization to go after polio. He didn’t start a government agency or push for government funding to do so. And that was probably as unremarkable then as Biden’s purported favoring of further subsidizing his own form of transportation was unremarkable 70 years later.