Friday, April 30, 2010

The Enumerated Powers

I wish I could be a libertarian.  I really do.  In fact, I think we all do.  Nobody loves paying taxes, nobody loves a big bloated government, nobody loves politicians who are almost universally slimy and packaged and plastic.  I think we all have our own certain ideal for a government-light society.  But there is where the problem comes in: everyone's ideal is different.  Not only that, but those with the most money tend to force their ideals upon the rest of us until we can't take it anymore and turn to government to try to inject some sort of counter-balance.  The rich and powerful then try to game the new system, and away we go.

That is a basic back and forth we have in America today.  We are presented with a choice of who we hate more: corporations or government.  Both are big and ugly and powerful and inhuman and seemingly untouchable and, to our horror, actually really so intertwined as to be almost the same thing.  The financial reform legislation process highlights this fact nicely.  On the one hand you have Democrats trying to reform the system and put some regulations on how Wall Street functions in order to avoid another Great Recession, on the other hand you have Wall Street there every step of the way trying, and succeeding, to make the new reform as painless to themselves as possible, and with as many loopholes as possible.  The majority of Americans could not possibly be more confused about who to hate more.

Those that hate the government more have tended recently to question the constitutionality of federal government action, particularly as big reforms are being enacted to rein in the the insurance and financial industries' excesses.

The Constitution is a document in which "We the people" give certain powers to the federal government in some instances and explicitly deny it powers to act in other instances.  For instance, we have given the federal government, specifically Congress, the power to declare war, but we explicitly deny the federal government the power to quarter soldiers in our houses.  The former are called enumerated powers and they are what are at issue more and more these days.  Does the Constitution give the federal government power to regulate the insurance companies and require every American to purchase health insurance?  Does the Constitution give the federal government the power to regulate the derivatives market?

Explicitly, no.  Implicitly, yes.  And here is where Constitutional interpretation becomes a big effing deal.  Article II I Section 8 of the Constitution gives Congress 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."  This is called the General Welfare Clause.  It also gives Congress power to "regulate Commerce with foreign Nations, and among the several States."  This is called the Commerce Clause.  Finally, for our purposes here, the Constitution gives Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."  This is called the Necessary and Proper Clause.

What we have here are three incredibly broad and vague statements that can be interpreted pretty much any way you want.  The only restriction would seem to be the Bill of Rights and other protections found elsewhere in the Constitution.  Since they are so open to interpretation, what some people want to know is what the Founding Fathers meant when they wrote those clauses.  In fact, the Necessary and Proper Clause was one of the most hotly debated items in the Constitutional Convention.  Thomas Jefferson and Patrick Henry opposed it because they thought it would lead to a limitless federal government that trampled civil liberties.  Alexander Hamilton and James Madison argued for its inclusion, and George Washington agreed, and laid out their argument in the Federalist Papers, the main thrust of which was that a strong central government was necessary and desirable.  It was on the authority of this clause that the Founding Fathers created the early National Bank, which was a contentious issue, to say the least.

Two things.  First, we see that trying to divine the capital-I "Intent" of the Founding Fathers for purposes of Constitutional interpretation is a red herring because just as today we have a great diversity of political thought and opinion, so did they.  They rarely, if ever, agreed completely on what a certain clause or section meant.  Many will attempt to turn to the Federalist Papers as definitive proof of what the FFs meant when they wrote certain words, but this is only the opinion of a certain few.  There were many others that opposed the viewpoints of the Federalist Papers for many different reasons.  Simply, there is not single "Intent."

Second, as I pointed out in the previous post, there is no overwhelming reason to even give their opinions and writings any more value than our own.  We have the actual words they wrote, and that should be enough.  We are now free to use those words to solve our problems in which way we deem best.  They simply could not have imagined the complexities and problems we face, and therefore are not in a position to dictate to us how to solve those problems beyond the framework they gave us in the Constitution.

So I can understand and respect the argument that the Constitution should be interpreted strictly to limit the federal government to a very small mass that stays out of our lives almost completely.  I disagree, but I respect.  But I cannot understand and respect the argument that this is the only way to interpret the Constitution.  It is too vague and broad in some areas, and the FFs were too sharply divided on their meanings, to be limited to a single interpretation.

It is therefore altogether reasonable, in my mind, to oppose the actions of the federal government regarding health care reform and financial reform on public policy grounds, but not on Constitutional grounds.  There is plenty of space in the broad language of the enumerated powers laid out above to find that those actions, and others like them, are for the general welfare of the United States, are transactions in interstate commerce, the passage of which are necessary and proper in the carrying out of the duties of Congress, and do not conflict with other protections found in elsewhere in the Constitution.


Erik said...

Great post! I get a bit weary of the "matter-of-fact" interpretation of what the constitution forbids and what the founding fathers meant that I hear all too often at BYU.

Architect said...

You can join the Libertarian Party, However there are many unsavory characters in the movement - not as many as there are unsavory democrats or republicans (since the LP is smaller).

I think that the Constitution needs to be read logically to see the order of it. General Welfare - should not be read as allowing specific welfare. For instance adding a road in a specific state is specific road, not a road that benefits the entire USA. Setting a standard for road construction is general and can apply to benefit the entire USA.
Granting a monopoly on the creation of money or credit is specific welfare. A small group gains the benefit. Excluding Freddy & Fanny from regulation is not "general" regulation.

One can oppose the federal Obamacare on the grounds that it does not create general standards, but grants specific welfare to certain companies, religions, individuals, and creates a new broad group of regulators to create new regulations. We will not elect any of these people. our representatives will not vote on the regulations. The regulations will have the force of law. People will pay taxes, fines and go to prison.

Jacob S. said...

Reforming the entire health insurance industry is specific? Regulating the financial and credit markets is specific? I'm not sure I could agree with those assertions. These are markets which effect every single American, and reining in their excesses similarly benefits all Americans. Freddy and Fanny have been disgracefully run, I won't argue that, but their programs have benefited millions of Americans by allowing them to get loans and purchase homes. I don't think there is anything non-general about that, either.

As for health insurance regulations, every agency in the nation has a set of complex regulations. Check out the thousands of pages of the Code of Federal Regulations. If you are opposed to the method in which these regulations are written and enacted, then you would be opposed to the FCC, BLM, Forest Service, ATF, Department of Defense, Social Security Administration, and all other federal agencies.

This is how the government is run. Congress gives limited legislative powers to the executive branch to create administrative agencies which enact regulations to guide their decisionmaking. Congress retains oversight of those agencies and can alter them when they want. If the people don't like the way a certain administrative agency is doing business, they can pressure their representatives to make changes, or vote for representatives who will make changes. The new health insurance reform will function the same as all the rest.