March 05, 2009

The late, unlamented George W. Bush administration was a disaster for American constitutionalists. The second Bush insisted that he as president possessed inherent power to wire-tap American citizens despite constitutionally enacted laws, shielded his underlings against valid congressional subpoenas even so far as to permit them to refuse to plead “€œexecutive privilege”€ in person, rendered Federal Government supervision of even the most basic functions of public schools permanent with No Child Left Behind, and (so Ockham’s Razor tells me) overstepped even Alexander Hamilton’s idea of the limits of presidential power by deceiving Congress into granting him authority to make war on another country. It might have come as a relief for proponents of constitutional government, then, to see Bush return to Texas.

It might have, but it didn”€™t. The electoral defeat of the Republican Party in 2008, after all, meant the replacement of a party that at least talks the originalist talk by one that holds originalism (also known as “€œlaw”€) in contempt. Already in the first weeks of the Barack Obama administration, Democrats in Congress and in the Executive Branch have taken several steps along the road of absolute constitutional nihilism.  Since the U.S. Constitution stands for federalism, republicanism, and limited government, their program is essentially to ignore it. Given majority power, the Democratic Party feels entitled to adopt whatever initiatives come to mind, and those initiatives tend toward further centralization, empowerment of unelected officials, and statism.

Consider the “€œSanford Amendment“€ in the recent stimulus bill. Governor Mark Sanford of South Carolina said that he would reject some of the funds made available to the Palmetto State under that bill.  The alternative would entail permanent and undesirable alteration of his state’s unemployment compensation policy, Sanford explained, and so he had to turn down the money.

Democrats in the House of Representatives therefore added this language to the bill:  “€œIf funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”€ Note that what Congress purports to do here is to reassign an executive function of state government from the governor to the legislature. Where did Congress get authority to amend a state’s constitution in this way? To ask the question is to answer it. The Democrats”€™ attitude is that such niceties are irrelevant in the face of the congressional majority’s urge to spend money.

The Obama administration also has decided to reassign responsibility for the decennial census from the Commerce Department to the White House. This move presages the use of “€œenhanced statistical techniques”€ to inflate the “€œcount”€ in minority-rich (read: heavily Democratic) inner cities. While the Constitution says that there will be an “€œactual enumeration”€ every ten years (in place of the guesstimate made by the Philadelphia Convention in allocating representatives in the First Congress), Democrats have long held that the very idea of an “€œactual enumeration”€ is passé.  Soon enough, then, apportionment of the House of Representatives, and of much federal spending besides, will be on the basis of completely unbiased, neutrally derived, never manipulated statistical analyses. We can trust the statisticians”€™ fairness, because statistics never lie.

As if that were not enough, Congress is now on the verge of adopting legislation that will give the District of Columbia a voting member of the House of Representatives. The Constitution says that “€œthe people of the several States”€ will elect representatives, and the District of Columbia is not a state, but never mind: any neutral application of republican principle leads to the conclusion that D.C. should have a voting member anyway. Democrats insist that partisanship has nothing to do with their thinking. Oh, and by the way, Obama carried D.C. with 93 percent of the vote. Perhaps then, Democrats will be repaid for their principled stand by a permanent 1-vote augmentation of their bloc in the House. (Note that Republicans long allowed territorial delegates and the D.C. delegate to vote in committees, including the Committee of the Whole.  As usual, the Democrats”€™ unconstitutional initiative has Republican antecedents.)

Democrats today led the House in considering a measure that would allow federal judges to reduce the outstanding principal on home mortgages. Few initiatives could more clearly recall the state legislation of the 1770s and “€™80s that led Alexander Hamilton, James Madison, George Washington, and other Federalists to lament that they were witnessing “€œthe crisis of republican government.”€ Soon, Madison feared, the propertyless would simply dispossess the propertied. That is why Article I, Section 10 of the Constitution includes the Contracts Clause, which bars state legislative initiatives impairing the obligation of contracts.

But, an advocate of this measure might object, there is no analogous provision limiting the power of Congress. Doesn”€™t this mean that the Constitution was supposed to shift the power to take creditors”€™ money and give it to debtors from the state legislatures to Congress? In a word, no. The underlying principle of the U.S. Constitution was supposed to be that Congress would have only the powers (as Framer and Ratifier Edmund Randolph put it) “€œexpressly delegated.”€ By denying the power to the states without granting it to Congress, the people through the Constitution were saying that no institution of government would have this power.

Of course, to give this power to federal judges is also to violate the separation of powers, as the function of deciding which party to a mortgage should bear its cost surely is not judicial in nature. What we have here is a frontal assault on private property wrapped in a new attack on the republican principle in the federal system.

President Obama in his recent address to a joint session of Congress called for “€œreform”€ of the medical “€œsystem”€ in the United States. Since the early 1960s, several prominent figures on the left have pointed to the Ninth Amendment“€””€œThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”€”€”in support of federal negation of state policies restricting certain types of sexual and anti-sexual behavior. They overlooked in doing this that the Ninth Amendment’s point was to limit the power of the Federal Government, not to give federal judges the veto over state laws that James Madison failed to persuade the Philadelphia Convention to give to Congress.

In other words, the idea that the Ninth Amendment gives people a federal right enforceable against state governments to engage in non-procreative and/or non-marital sexual behavior of various kinds is specious. It seems to me, however, that the right to obtain medical services from whom one will, as well as the right to arrive at a price for medical services in bargaining with one’s physician, are precisely the kinds of behavior traditionally understood to be among the rights of free people in England and, later, America. Although not enumerated, power to infringe on these traditional rights was denied the Federal Government by the Ninth Amendment. In other words, Obama’s health-care proposals anticipate actual violations of the Ninth Amendment. That the inconsistency between their pet provision and their pet program seems to have occurred to no one in legal academia or the Democratic Senate caucus says quite a lot about legal academia and the Democratic Senate caucus.

The Obama administration has barely begun, and yet, on a wide range of issues, the new Democratic era already marks a significant departure from America’s constitutional tradition.  Even if you accept that Congress may spend money on anything that comes to mind, and that the secretary of the treasury can decide on his own to print $2.5 trillion (that is, to adopt Zimbabwe as America’s model in matters of economic policy), the first hundred days of Obama-Reid-Pelosi may mark the dawn of something new.

New in America, but old everywhere else. It seems that the Constitution is stone, cold dead, and no one even notices its absence anymore. America, like the Old World countries of 1789, has unlimited government. My unhappy guess is that we will soon see what it is worth.

Kevin R. C. Gutzman is co-author, with Thomas E. Woods Jr., of Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.

Photo: Crown Forum


Sign Up to Receive Our Latest Updates!