What If the Government Followed Its Own Constitution?
By Laurence M. Vance
Conservatives hold sacred the Constitution, or at least they maintain they do. Republicans profess to be the “party of the Constitution.” They claim to revere the Constitution, to love the Constitution, to honor the Constitution. They castigate “activist” judges for broadly reading the Constitution. They criticize those who advocate a “living Constitution.” They talk about the necessity of discovering the “original intent” or “original meaning” of the Constitution. Conservatives and Republicans even insist, with a straight face, that they believe in following the Constitution, when, of course, they do nothing of the kind.
Libertarians know that the Constitution is not a libertarian document. The taxing and taking power the Constitution gives to the federal government is troubling. Libertarians recognize that the Constitution is a flawed document. The ambiguous clauses in the Constitution—the “general welfare” clause, the “commerce” clause, and the “necessary and proper” clause—have been abused almost from the very beginning. Libertarians believe history makes abundantly clear that the fears the Anti-federalists had about the Constitution allowing the national government to become too centralized and too powerful were tremendous understatements. The Constitution has utterly failed to limit the size and scope of the federal government. Libertarians argue that the Constitution was designed to expand government power, not to limit it. The Constitution means only what the Supreme Court interprets it to mean. As Lew Rockwell reminds us in Against the State: “The Constitution creates a government that is the judge of its own powers.”
Nevertheless, even though the Constitution is not without its problems, it would be better for the cause of liberty and property if the government at least followed it in those areas where it currently doesn’t. This is because most everything the government does is unconstitutional. Now, although it would be better still if the government also didn’t follow the Constitution in those areas in which the document is problematic, first things first.
The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government—not the other way around. As James Madison succinctly explained in Federalist No. 45:
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 last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
There are about thirty enumerated powers congressional powers listed throughout the Constitution. Everything else is reserved to the states—even without the addition of the Tenth Amendment.
Most of these powers are listed in the eighteen paragraphs found in article I, section 8. Four of them concern taxes and money. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. Six concern the military and the militia. Once concerns the governance of the District of Columbia. The last one gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
Congress may also propose amendments to the Constitution or call a convention for proposing amendments, admit new states into the Union, make or alter state regulations concerning national elections, establish courts inferior to the Supreme Court, direct the location of the place for the trial of a crime not committed within any state, declare the punishment for treason, provide the manner in which the public acts and records in each state are accepted by the other states, dispose of and regulate the territory or other property belonging to the United States, give the states consent to lay imposts or duties on imports or exports, and provide by law for the case of the removal, death, resignation, or inability of the president of vice president.
If one simply compares what the Constitution authorizes the government to do with what it currently does, it is obvious that the government hardly follows its own Constitution at all. For if the government did follow its own Constitution—
There would be no Social Security.
There would be no food stamps.
There would be no Medicare.
There would be no Medicaid.
There would be no Equal Employment Opportunity Commission.
There would be no student loans.
There would be no Tennessee Valley Authority (TVA).
There would be no Transportation Security Administration (TSA).
There would be no AMTRAK.
There would be no Drug Enforcement Administration (DEA).
There would be no Department of Agriculture.
There would be no Head Start.
There would be no federal prohibition on organ sales.
There would be no National Endowment for the Arts (NEA).
There would be no National School Lunch Program (NSLP).
There would be no Low Income Home Energy Assistance Program (LIHEAP).
There would be no Pell Grants.
There would be no refugee assistance programs.
There would be no block grants to the states.
There would be no Department of Health and Human Services.
There would be no federal job training programs.
There would be no federal family planning programs.
There would be no Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
There would be no Small Business Administration (SBA).
There would be no AmeriCorps.
There would be no National Flood Insurance program.
There would be no Department of Labor.
There would be no federal war on drugs.
There would be no Federal Housing Administration (FHA).
There would be no National Endowment for the Humanities (NEH).
There would be no farm subsidies.
There would be no school breakfast programs.
There would be no U.S. Agency for International Development (USAID).
There would be no federal anti-discrimination laws.
There would be no Environmental Protection Agency (EPA).
There would be no Corporation for Public Broadcasting (CPB).
There would be no Export-Import Bank.
There would be no Minority Business Development Agency.
There would be no Department of Education.
There would be no federal adoption assistance programs.
There would be no refundable tax credits.
There would be no Supplemental Security Income (SSI).
There would be no Appalachian Regional Commission (ARC).
There would be no Temporary Assistance for Needy Families (TANF).
There would be no Women, Infants, and Children (WIC) program.
There would be no Federal Emergency Management Agency (FEMA).
There would be no Department of Housing and Urban Development.
There would be no Federal National Mortgage Association (Fannie Mae).
Federal Home Loan Mortgage Corporation (Freddie Mac).
There would be no Department of Energy.
And these are just fifty things off the top of my head. I could list fifty more. And then fifty more. Then, after doing some research, I could list 500 more.
What this means is that if the government followed its own Constitution, there would be no subsidies, no redistribution of wealth, no corporate welfare, no income transfers from those who work to those who don’t, no welfare state, and no nanny state. In other words, the United States would be a free society.
There yet remains two other things to be said.
One, anyone who calls himself a constitutionalist or a constitutional conservative and supports any of the above fifty things is a liar, a fraud, and an enemy of the Constitution.
And two, anyone who thinks that we need a constitutional convention to propose new amendments to the Constitution—including a balanced budget amendment—has rocks for brains. The government currently violates its own Constitution in 10,000 ways. Why would anyone possibly think that government would follow any new amendments to the Constitution? Why would anyone possibly think that congressional spending would be reigned in by a balanced budget amendment?
Although the Constitution has utterly failed to limit the size and scope of the federal government, it would still be a good thing for the cause of liberty and property if the government made some attempt to follow it.