It is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects. James Madison, Federalist #14
The Founders distrusted strong governments. Their own experience and study of history taught them that overly powerful governments turned oppressive. But they also knew a government was necessary, in fact, a stronger one than what they had at the beginning of our nation. By the time the Constitutional Convention convened in May of 1787, a consensus had developed that the Articles of Confederation were severely flawed, but there was uncertainty about what kind of government could sustain a republic through the ages. They knew it couldn’t be too weak, but it also couldn’t be too strong.
The Founders did not seek a Goldilocks government. Instead they designed an elaborate set of checks and balances so they could give the government enough power to govern, while harnessing it with multiple Lilliputian ropes that would hold it in place so it didn’t trample the little people. From our high school civics class we all learned about the checks and balances between the three branches, but teachers seldom mention the intended check of the national government by the states. Nor were we taught that the Founders wanted our national leaders selected and elected by different means as yet another check on a runaway government. Lastly, the Constitution ratified by the people was supposed to be the premier check to prevent our government from becoming oppressive.
Like Gulliver, our behemoth national government has shrugged off one constraint after another until there are no practical limits to its power. All three branches regularly overstep their boundaries as if each were given unchecked authority. The states are currently struggling to reassert their rightful place in a federal system. State legislatures no longer elect Senators, and the Electoral College is under attack. The general welfare, commerce, and necessary and proper clauses have been use to circumvent the enumerated powers. The Constitution itself has been made impotent by defining it as a living document.
As a result, the national government has few acknowledged constraints. We have diverted from the intent of the Founders. In 1791, James Madison told Washington that “to take a single step beyond the text would be to take possession of a boundless field of power.” He then recommended that the government, “keep close to our chartered authorities.”
Today, Madison would be called a strict constructionist. He wouldn’t disagree. His most strident belief was that all political power emanated from the people. Thus, a constitution was a written contract between the people and its government. At the conclusion of the Constitutional Convention, he rejected approval of their work by Congress or the states, and convinced the other delegates that the constitution had to be sent directly to the people for ratification. Beyond the initial approval, the Founders believed that only the people could change the Constitution. If authority is assumed beyond the enumerated powers without an amendment, it is a usurpation of power—power that rightfully belongs to the people.
No lawyer believes in a living contract. If something isn’t working properly, then the contract must be amended, and contracts are amended every day all over this country. In fact, the United States Constitution has been amended twenty-seven times.
Many believe that the tenth amendment reserved to the states all power not enumerated in the Constitution for the national government. This is an over-simplification. The Tenth Amendment reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The people ratified the Constitution which gave the national government enumerated powers. The people also delegated differing levels of power to the various state governments. All power not delegated to a component of this federal system, is reserved to the people.
We have meandered away from these basic tenants. It has not been a successful trek. The deficit is an astonishing $14 trillion. Interest costs are consuming an ever larger percentage of the national budget, and will skyrocket when interest rates return to historical norms. These numbers represent real jeopardy.
This is why the lawsuit by the states against Obamacare is crucial. This trend toward concentrated power must be reversed. There is much else we need to do, but a Supreme Court ruling that put an outside boundary around the commerce clause is a necessary first step.