How We Turned the Constitution Upside Down

At the time of this country’s birth, the concepts of federalism and the separation of powers were as revolutionary as the Declaration of Independence itself.  The Constitution, with its inherent systems of confrontations and obstructions to policy implementation still stands as arguably the greatest harbinger of liberty ever created.  The realization was not lost to nineteenth century Prime Minister, William Gladstone, who called it “the most wonderful work ever struck off at a given time by the brain and purpose of man.”

Although our children continue to be instructed on the separation of powers doctrine, notably absent from their curricula, and consequently in our daily discussions, is the equally important concept of the adversarial relationship between the federal government and the states.

The construction of the Constitution was based on the assumption that thirteen sovereigns were assembling to create a system of government that would “form a more perfect union, provide for the common defence, promote the general Welfare, and Secure the Blessings of Liberty to ourselves and our Posterity.”  Integral to the process was the acknowledgement of the lack of existence of a federal government prior to the enactment of the Constitution.  Being that the Congress was being created by the states, it was impossible for the federal government to have any powers prior to the adoption of the United States Constitution.  The new federal government, therefore, carried with it only the powers afforded to it by the very states that gave it life.

Seen differently, at the time the Framers assembled in Philadelphia, there was no Congress, and there was no federal government.  The states, therefore, were in possession of one hundred percent of governmental powers.  Consequently, any powers given to the Congress were ones voluntarily submitted to it by the various states with the hopes of accomplishing the goals set out in the preamble. Congress would consequently have no powers not directly mentioned, or enumerated, in the Constitution.  The concept is integral to the collective genius of the men who assembled in Philadelphia in 1789 and central to the success of their governmental design.

According to the Framers, the federal government was entitled to perform only certain tasks.  Those tasks were enumerated in Article I, Section 8 of the Constitution and included the following:

  1. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States,
  2. To borrow money on the credit of the United States
  3. To regulate commerce with foreign Nations and among the several states, and with the Indian tribes
  4. To establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies
  5. To coin money, regulate the value thereof, and fix the standard of weights and measures
  6. To establish Post offices and post road
  7. To secure, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries,
  8. To constitute tribunals inferior to the Supreme Court,
  9. To define and punish piracies and felonies committed on the high seas
  10. To declare war, grant letters of marque and make rules concerning captures on land and water,
  11. To raise and support armies
  12. To provide and maintain a navy
  13.  To make rules of the government and regulation of the land and naval forces
  14.  To provided for calling forth the militia
  15.  To provide for organizing, arming and disciplining the militia
  16.  To exercise exclusive legislation in all cases whatsoever over such District, not exceeding ten square miles as may become the seat of government,
  17.  To make all laws necessary and proper for carrying into execution the foregoing

And that’s it.

Not included in these powers is the power to force you to buy health insurance.  Not included is the power to create a national health insurance.  Not included here is the power to create a retirement fund, or to establish a minimum wage, or to provide funding for the arts, or for abortions (or for that matter to provide funding to prohibit abortions).

Think about practically any program the federal government advertises in public service announcements and you will find it likely to not be included within the powers originally afforded to Congress by the Constitution.

That’s not to say government was prohibited from creating these programs, just not the federal government.  Indeed, the Tenth Amendment to the Constitution guarantees the preservations of the those powers to the states when it declares:  :”The powers not delegated to the United States [meaning the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, although the federal government is restricted in its powers to include only those actually afforded to it in the Constitution (the so-called enumerated powers), the states are afforded the opposite relationship with its powers; namely, it is afforded all powers from which they are not specifically restricted by their own constitutions.

How is it possible then that so many federal programs have come into existence?  The answer lies in a branch, a clause, and an amendment.


The Supreme Court of the United States.


Perhaps the first step in the expansion of federal power is the central role of a robust and vibrant judiciary.   The Supreme Court took its first step in establishing itself as the primary interpreter of the Constitution in 1803, when John Marshall decided the case of Marbury v. Madison.  Among other holdings, Chief Justice Marshall emphatically declared the Constitution as the Supreme Law of the Land, governing the nature of all other laws of the nation.  If the Constitution was Supreme, he concluded, then it was the Supreme Court’s role to decide whether a statute was offensive to it or not.  If it was, then the law was void.

Aside from the Constitution itself no other collection of words have defined the structure of American governance than those etched in John Marshall’s opinion in this case.


The Commerce Clause


Arguably, no language of the Constitution has been so contorted for the sake of political expediency than the Third Clause in the Eighth Section of the First Article of the Constitution.  Amazing in its brevity, the interstate commerce clause simply gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  The Interstate Commerce Clause was designed to address one of the weaknesses of the Confederacy, namely, Congress’s inability to coordinate trade between the states so that the economy could act as a cohesive machine conducive to intercourse amongst the sovereigns.  The classic application of the power and intent of the clause lay in Gibbons v. Ogden (1824), where the Supreme Court acknowledged Congress’s Constitutionally proscribed authority to prohibit a state from interfering with the commercial access by a citizen of another state.

However Congress’s reach into the internal economic activities of the various states would not stop with the facilitation of economic exchange.  Supported by a Supremely accommodating Court, the progressive Congresses of the 1930s and 40s would stretch the interpretation of the powers afforded by the Interstate Commerce Clause to levels never before seen.  In 1938, misappropriating the powers afforded to it by the Constitution, Congress passed, and President Roosevelt signed, the Agricultural Adjustment Act, which among other things allowed the federal government to restrict the amount of wheat a farm could produce per year.  The Congress defended its actions by invoking its responsibility to control the fluctuating produce prices so as to protect America’s farming industry during times of economic crisis.   By limiting the supplies of various food products entering the interstate market, Congress felt it could artificially elevate agricultural prices, protecting America’s farmers at the expense of the financially strapped American consumer.  Noncompliance was punishable by a fine.  The Secretary of Agriculture decided to stretch the reach of the legislation even further when he fined a farmer in Montgomery County, Ohio, for producing more than his allotted quota of wheat even though the excess wheat was primarily being used for his personal consumption and there was little evidence that any of his products would ever leave the state.

With this action, the federal government stretched the application of the Interstate Commerce Clause from activity “among the several states” to activity taking place within one.  It was an ambit the Framers clearly had not intended for the federal government.

Nevertheless, Justice Jackson interpreted the power differently. Writing for the Court in Wickard v. Fliburn (1942), Justice Jackson said that, if an economic activity, in its aggregate, impacted interstate commerce, then it too stood within Congress’s reach through Article I, Section 8, Clause 3 of the Constitution.

The Aggregate Doctrine was the spark Congress needed to spread to manipulate activities taking place solely within the states.  Unleashed of the burdens of state lines, the federal government was now free to enact national labor laws, minimum wage legislation, abortion laws, health care insurances, and most recently, conceivably the power to force its inhabitants to purchase certain products.

Although intimidating in their disruption of the symbiotic relationship between the federal and state governments, there were many favorable enactments that arose through the judicious use of the Interstate Commerce Clause, not the least of which was the defense of the Civil Rights Act of 1965, as upheld in cases like Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964).  However, the misuse of power is always a major concern to the point where the Supreme Court has recently begun recognizing limits to the reach of federal influence.  For example, in United States v. Lopez (1995), the Supreme Court ruled Congress could not, under the Interstate Commerce clause, enact legislation criminalizing the possession of firearms within a school zone.  In United States v. Morrison (2000), the Court similarly stated Congress could not defend its enactment of a federal tort law relating to violent acts against women under the Interstate Commerce Clause.

In 2012, the Court will decide on another argued extension of federal powers, whether Congress, under the Interstate Commerce Clause has the authority to enact legislation requiring individuals to purchase health care insurance.   Ruling such a power not offensive to the Constitution will certainly irreversibly transform this country’s fabric.


The Fourteenth Amendment


The final inversion of the Constitution came with the misuse of Section 1 of the Fourteenth Amendment.  One of the three Civil War Amendments, the Fourteenth was designed to protect freed slaves from abuses imparted upon them by the States.  The intent was to keep states from enacting discriminatory legislation that would impose the equivalent of perpetual enslavement upon those whom the country had just expended blood and treasure to free.

Section 1 of the Fourteenth Amendment essentially says four things:

  1. Any person born a naturalized in the United States is a citizen of the United States and of the state in which that person resides.
  2. No state will make any law that infringes upon the privileges and immunities of citizens of the United States
  3. No state shall deprive any person of life, liberty or property without due process of law
  4. No state will deny any person of equal protection of the laws.


The first two statements are largely inapplicable to our discussion since the respect of one’s citizenship is not inconsistent with the original design of our federalist government, and the second, the privileges and immunities clause, was essentially defanged by the ruling in ˆThe Slaughterhouse Cases.  However, the effects of the Due Process clause and the Equal Opportunities clause are profound.

The centerpiece of the Civil War transformation of American federalism lies with various restrictions placed upon the states by the Fourteenth Amendment. As it, for the first time, imposed social policy and procedural restrictions upon the states.  After the Fourteenth Amendment, the ability of the different sovereigns to enact policies applicable to their constituents independent of the restrictions imposed upon them by the federal government was eliminated.  A classic example of this is seen with the rulings of Barron v. the Mayor and City of Baltimore, a case decided in 1833.  Here, the Supreme Court exercised the opportunity to decide whether the protections afforded in the Bill of Rights also applied to the states.  The case centered about a complaint from a citizen of Baltimore whose property was permanently inundated (taken) by the City when it redirected water about the wharf.  The citizen contended the city had not offered him sufficient due process under the law as required by the Fifth Amendment.  The Supreme Court ruled that the due process protections found in the Bill of Rights did not apply to the states, and only applied to the federal government, thus nullifying the plaintiff’s argument.

That philosophy remained largely undisturbed until the passage of the Fourteenth Amendment.  Thereafter, the Supreme Court has held that the Fourteenth Amendment essentially conferred the same protections against state authority as federal authority.

The result, in the eyes of the defenders of state sovereignty, has been devastating.  Instead of being purely a protector of the freed slave, the Fourteenth Amendment has now transformed itself into a behemoth bent on submitting the various states to the will of the federal government.

Admittedly, many favorable developments have come from the revamped relationship between the state and the federal government, not the least of which is an enhanced respect for due process by the states regarding individual property rights.  However, numerous restrictions have been created as well that would have never seemed imaginable to the Framers.  Here are but a few:

  1. Federal labor laws on intrastate activities.
  2. Federal requirements on education
  3. Federal abortion legislation
  4. The funding of abortions
  5. The prohibition of prayer in school
  6. Federal restrictions to displays of worship in state and municipal properties
  7. Restrictions on prayer related to official public services.


What Happens Now?


The restrictions placed on states sovereignty by the combination of penetrating clauses such as those contained in Section 1 of the Fourteenth Amendment and the Interstate Commerce clause does not signify the end of a robust federalist government.  Quite the contrary.  The mere possession of the authority does not mean that the authority must be employed.  If anything, such a relationship places an even greater burden upon the people to keep the federal powers in check.  Being that the abilities of the various states to keep federal powers at bay have been greatly weakened, the American people remain the great protectors of their own freedoms.  It is only through their voices and the power of their votes that the great inversion of power thus created can remain in check.

And it begins with each child learning that the federal government is a government of enumerated powers, and that such powers not specifically afforded to the federal government by the Constitution are reserved to the States or to the People.

And if our largely federally funded schools will not teach it; then each and every one of us must.