Whatever happened to limited government?

By W. James Antle III
web posted September 18, 2000

It used to be pretty easy to tell what the federal government could and could not do. There was, after all, the Constitution which enumerated certain powers and functions of the central government, and separated them among the three branches. For those who were a bit too dense to draw this basic civics lesson and comprehend the plain text of the original Constitution, the Bill of Rights added further clarification to the subject: The Ninth and the Tenth Amendments say essentially, "Look Mr. Politician, the people have more rights than are expressly granted them by this document, but the federal government doesn't. Any questions?"

As time went on, it turned out there were a lot of questions, which politicians increasingly answered with bigger and more powerful government. The whole concept of the rule of law is that the citizen knows his rights and the circumstances under which he will run afoul of the law beforehand, so he can plan his life accordingly. The Founding Fathers had this concept in mind when they framed the Constitution. Here we have a federal government that can do this, and the states and the people are free to do that. The Constitution was for all intents and purposes a list of areas in which the citizens could expect the federal government to intrude. Beyond that, Americans needed to worry only about their respective state governments.

Needless to say, the Founding Fathers would be spinning in their graves if they knew of our present political conditions. The concept of limited government and the rule of law has been replaced with people empowering government on a whim to deal with anything their personal value judgments found to require collective coercive action. If politician or vocal constituent group thinks it is a problem, then some scheme will be devised for the government to "fix" it. It is never asked whether this is an appropriate area for government intervention; the very fact some loud or influential or just pretty darn big group of people confirms that it is.

Such a mentality is gradually undoing the federal constitutional republic the Founding Fathers had created, moving us closer to the unitary states of Europe. If it falls within the parameters of public concern, why not have the central government take care of it rather than the state and local governments? State and local governments are thus trampled by the feds, diminishing their importance relative to the capital's. Nor are any objective limitations on federal activity consulted or even conceived of. The value judgments of those concerned with a laundry list of vexing problems substitutes the Constitution as the basis of determining what the federal government can and cannot do.

Bill Clinton is the poster child for this mentality. Anything that happens which is rightly an object of concern to large or particularly vocal numbers of Americans, ranging from aggravations and injustices in dealing with one's health care provider, to school shootings, to violent television programs, to perceptions that police officers are somewhere treating members of certain communities unfairly are all seen as reasons to give the federal government more money and more power. Never mind that some of these problems could be dealt with by the state and local governments, or could be solved (or at least coped with) by private institutions with little or no government action at all. Never mind that from a constitutional perspective, these people ought to be handled by state and local governments or the private sector. The feds need to get their hands in it, so the president can keeping doing the people's business.

Clinton is seen as a New Democrat because he agrees with Ronald Reagan that big federal programs don't always work, and thus has been willing to endorse some measure of federalism and flexibility in some circumstances. But he does not disagree with the concept behind big government, that that government (especially at the federal level) is a super problem-solver, limited only by the problems it has to solve. This premise is reason for the vast stealth expansions of federal authority under his administration.

This is also the reason our presidential campaign focuses on a debate between the Democrats and the Republicans about what percentage of their incomes the people should be allowed to keep, and how large a tax cut the government can "afford." Never do the candidates question whether all of this money is being confiscated for legitimate expenditures, or whether the people can afford the amount of taxes they are paying. Never do they question the right of the government do determine what percentage of a citizen's income he should keep.

Al Gore believes there should be a federal role in deciding how much water your toilet tank should hold, how big your yard should be and whether you drive an SUV as presently built in America. King George III was not concerned with such mundane things, and Americans launched a revolution against him.

Sorry Bill, no third term for you!
Sorry Bill, no third term for you!

Everybody still pretends to obey and revere the Constitution. We know, thankfully, that Bill Clinton can't presently stand for a third term, and we wouldn't be able to have a president who was only 34. We are supposed to have a Census and the president is actually selected by the Electoral College. Revenue bills begin in the House, impeached officials (like Clinton) get sent to the Senate for trial. Procedurally, politicians at least pay lip service to the Constitution.

Yet in terms of the substance of federal action, no attention is paid to the Constitution. The Constitution has been reduced to the level of Roberts' Rules of Order. It is estimated by those who still take its words seriously that nearly two-thirds of federal spending is de facto unconstitutional. Even the broadest imaginable interpretation would put that figure at close to half. When people are asked where in the Constitution they can find authorization for their favorite programs, they almost uniformly invoke "a living document" or the talk about how their preferred area of federal action affects interstate commerce, and thus is justified by the Interstate Commerce clause.

Slavery substantially affected interstate commerce. There was a slave trade between the several states and the economic impact of that institution's existence itself shaped the contours of interstate commerce. So much so, in fact, the tensions between the Northern industrial manufacturing system and the agrarian slave society of the South contributed to the Civil War. Neither Congress nor the president, and that includes Abraham Lincoln, believed slavery could be outlawed or even regulated on the grounds of interstate commerce. It took a constitutional amendment to abolish slavery.

Similarly, the brewing and selling of alcoholic beverages substantially affects interstate commerce as well. As recently as the 20th century, Congress found no authority to regulate it on the grounds of interstate commerce. A constitutional amendment was required to enact Prohibition and also to repeal it. No person who studies the Founders' intent or who possessed any serious understanding of the Constitution could possibly take the view that the Interstate Commerce Clause justifies any federal action that in some way involves interstate commerce.

But Congress legislates in this manner nonetheless, with the full force of the executive and, sadly, often the judicial branches behind them. A federal judge asked the a Clinton Justice Department attorney during a legal argument to name something specific the federal government could not do under the administration's interpretation of the Interstate Commerce Clause. The attorney couldn't think of anything.

This is revealing. The past century of slaughter by tyrannical governments notwithstanding, the cult of the autonomous state remains undaunted. Right now, we pay for the actions of well-meaning but misguided people and political opportunists only in the money lost to high taxes and burdensome regulations, the innovations the free market is hampered in making and the liberties gradually traded for security. The track record of unlimited government shows it has the capacity to be more than an aggravation. It can snuff out freedom and human lives.

Our often-vilified Founding Fathers anticipated such scenarios, and thus devised the Constitution to limit government. How astonished and disappointed they would be to discover that in today's world, it simply doesn't.

W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. You can e-mail comments to wjantle@enterstageright.com.

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