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Monday, February 3, 2014

Congress and the Constitution

by Gary Benoit

Each report of a committee on a bill or joint resolution of a public character shall include a statement citing the specific powers granted to the Congress in the Constitution to enact the law proposed by the bill or joint resolution.

— From the Rules of the House of Representatives

If most members of Congress were to stand by their oath to "support and defend the Constitution of the United States against all enemies foreign and domestic" and to "bear true faith and allegiance to the same," big government would disappear. It could not be otherwise, since all of the powers granted to the federal government by the Constitution are enumerated, and those enumerated powers do not allow for either the Welfare State or the Warfare State. Yet most congressmen do not grasp this fundamental principle, imagining instead an ambiguous and expansive grant of power never intended by the Founding Fathers. Apparently, most don’t even use the Constitution as a guide for the performance of their congressional duties, for if they did they would surely know the true scope of their powers — as well as those of the other branches of government.

This lack of interest in the Constitution was vividly displayed early last year when a group of "experts" appealed to the House International Relations Committee to support the U.S. Agency for International Development’s Population Assistance Program. As recounted by a congressional aide who was present, Congressman Ron Paul’s (R-TX) press secretary asked for the section of the Constitution that authorized this foreign assistance program, at which point "the room went dead — one, two, three, four, five seconds. Then one of the ‘experts,’ dazed and confused, asked, ‘The … Con…sti…tu…tion?’ More silence. Another ‘expert’ cautiously came to her rescue. 

‘Just to make a stab at this, the Constitution authorizes the federal government to raise money to deal with foreign affairs.’ Another ‘expert’ quoted some U.S. Code that ‘authorized’ their legal plunder. Then, they pounced, ‘What office are you from?’ The man replied, ‘Congressman Ron Paul from the 14th District of Texas.’ Then he thanked them and sat down. His question had been answered by their initial silence."

Most congressmen on the House International Relations Committee are no better informed on constitutional matters than the "experts" — or they would presumably not support international welfare without the proper constitutional authorization — an authorization which, of course, does not exist.

The House rule cited at the beginning of this article (Rule XI, Clause 2[l], Subparagraph [4]) was adopted at the start of the current 105th Congress as a means of reintroducing the Constitution to lawmakers and their staffs. 

Because the House committees are now required to cite the specific constitutional powers justifying the legislation they submit to the full House, they supposedly must read the Constitution and satisfy themselves that the powers are really contained therein. Also, any congressman is now able to refer to the committee’s constitutional authorization prior to voting on a particular bill and to decide whether or not he agrees that the bill is constitutional. That is not a lot to ask, of course, of lawmakers who have taken an oath to uphold the Constitution.

Presuming that lawmakers would apply this constitutional litmus test in an honest way, the Rules Committee analysis of this requirement stated that "it is expected that committees will not rely only on the so-called ‘elastic’ or ‘necessary and proper’ clause and that they will not cite the preamble to the Constitution as a specific power granted to the Congress by the Constitution." 

This "expectation" notwithstanding, since the adoption of the rule in January 1997, committees have on a number of occasions cited only the "necessary and proper" clause as the constitutional basis for legislation. They have similarly stretched the meanings of the "general welfare" and "interstate commerce" clauses, enabling them to justify virtually any social-welfare or regulatory program imaginable. And they have at times vaguely referenced Article I, Section 8 of the Constitution, the principal section enumerating congressional powers, without bothering to cite any particular power. In short, they have interpreted the Constitution not as a binding document authorizing specific powers, but as a blank check.

Of course, if lawmakers can legislate any law they want, then we have a democracy instead of a republic and there is no need for a written constitution limiting the powers of government. Moreover, if lawmakers can interpret the Constitution based on whatever liberal theory is in vogue at the moment, then the Constitution is an evolving document that holds no meaning as a fixed set of fundamental laws.

But lawmakers who subscribe to any such radical reconstruction are wrong, as can be readily demonstrated by referring to the Founders’ own writings, such as The Federalist Papers. As James Madison, father of the Constitution, explained in The Federalist, No. 45, "The powers delegated by the proposed Constitution to the federal government are few and defined" and "will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." Its jurisdiction, he explained in The Federalist, No. 14, "is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any." All other powers are retained by the states or the people, a principle that was well understood at the time and was later reaffirmed in the Tenth Amendment.

Because federal powers are "few and defined," Congress does not have carte blanche. "No legislative act … contrary to the Constitution can be valid," Alexander Hamilton noted in The Federalist, No. 78. "To deny this would be to affirm that the deputy is greater than his principal; that the servant is above hismaster; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid."

In The Federalist, No. 83, Hamilton added that since congressional powers are enumerated, "This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended."

Let us now consider specific clauses which House committees have cited in their constitutional authorization statements in order to justify their supposed "general legislative authority."

Article I, Section 8, Clause 1 of the Constitution, also known as the "general welfare" clause, states: "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." House committees have cited this clause to justify legislation relating to vocational education, literacy programs, job training, charter schools, student loans, housing programs, welfare reform, foreign aid, crime control, child support, etc. Their rationale is that Congress has an open-ended power to pass whatever legislation it deems appropriate to provide for the general welfare, including the transfer of funds from taxpayers to private individuals and organizations.

But this broad interpretation makes no sense whatsoever, since the general statement in Clause 1 is immediately followed by a list of specific powers that Congress can exercise to provide for the general welfare. Condemning this broad interpretation in The Federalist, No. 41, Madison asked: "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...."

Addressing this subject during congressional debate on February 7, 1792, Madison warned that "if Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress...."

In a letter on January 21st of the same year, Madison warned: "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."

Of course, the Founders’ intent with regard to the general welfare clause has been ignored and distorted, causing Madison’s dire warnings to come true. But the modern-day interpretation was not yet in vogue in December 1831, when Madison wrote: "Beginning with the great question growing out of the terms ‘common defence and general welfare,’ my early opinion expressed in The Federalist, limiting the phrase to the specified powers, has been adhered to on every occasion which has called for a test of it." Finish reading plus enumerated list of powers and duties of congress