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Monday, February 21, 2011

The Constitution, It's Critical to Understand It

"The powers delegated by the proposed Constitution to the federal government are few and defined," James Madison wrote in The Federalist Papers. In fact, Congress has only 18 such powers, enumerated in Article I, section 8.

But since the New Deal, several of those provisions have been read as authorizing Congress to do far more than was ever imagined by those who wrote the Constitution. This has led to a government that’s effectively unlimited—and increasingly unaffordable. A new House rule requires members of the 112th Congress to cite specific constitutional authority when introducing any new legislation.

That’s a start, but restoring limited constitutional government will require more than simply "checking a box." If legislators respond to that requirement by reflexively citing the Constitution’s three most widely misunderstood clauses—the General Welfare, Commerce, and Necessary and Proper clauses—they’ll violate the document they’ve sworn to uphold. Instead, to restore a constitutional culture and roll back intrusive government, it’s important that we understand those clauses as the Framers understood them:

Art. I, sec. 8, cl. 1: Congress has the power to collect taxes "to pay the Debts and provide for the common Defence and general Welfare of the United States."

Contrary to modern readings, this clause doesn’t grant Congress an independent power to tax and spend for the "general welfare." If it did, there would be no need to enumerate any other powers.

Rather, it authorizes Congress to raise revenue in support of the specifically enumerated powers that follow it. And Congress’s power to tax for the "general welfare" precludes it from taxing to provide for special parties or interests.

Art. I, sec. 8, cl. 3: "[Congress shall have Power] To regulate Commerce … among the several States."

Nor was the Commerce Power designed to provide Congress an open-ended mandate to regulate anything and everything that "affects commerce." Instead, the Framers aimed at creating a national "free-trade zone," putting an end to the interstate protectionism allowed under the Articles of Confederation. To ensure free trade among the states, Congress was given the power to regulate, or "make regular," such commerce—the main sense of "regulate" at the time. If the clause had been understood to grant Congress the boundless regulatory power it exercises today, the Constitution would never have been ratified.

Art. I, sec. 8, cl. 18: "[Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."

This clause grants Congress the means to execute its enumerated powers or ends. It adds no new ends. And those means must be "necessary and proper."
That means they must respect the Constitution’s structure and spirit of limited government, they must respect federalist principles, and they must respect the rights retained by the people.

A word from Ed Crane - Founder and President of the Cato Institute.

"I thought you'd enjoy seeing the attached ad we've run in the Washington Post, Politico and a couple of other papers. It’s good that the GOP wants the House to cite the constitutional authority for new legislation, but there is a danger the response will be a casual reference to the Commerce Clause or the General Welfare Clause. This ad points out (for the benefit of Congress) the true intent of those clauses, including the Necessary and Proper Clause. The work of our excellent Center for Constitutional Studies. Hope you like it."

Filed by Grant Davies,
Regular Columnist, THL
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