October 30, 2003
Whenever Congress wrangles about the Federal
budget and deficits, I have the same futile thought: Why dont they
just stop spending money unconstitutionally?
Two of the biggest items in the
budget, for example, are Social Security and Medicare. The U.S.
Constitution doesnt authorize either program. Eliminating them
would save the taxpayers trillions of dollars.
If you read the Constitution,
youll find the legislative powers of Congress carefully enumerated.
These powers, fewer than two dozen, dont include welfare
But somehow the idea has grown
up that the Federal Government has, in addition to its express powers, an
indefinite number and range of implied powers. But the
Constitution also makes it quite clear that the only implied
powers of Congress are those which are necessary and
proper for the execution of the powers explicitly listed. Aside
from these, the Tenth Amendment makes it equally clear that all implied
powers are reserved to the states and the people.
When the Constitution was
offered for ratification, wise men feared that the necessary and
proper clause would lend itself to abuse, allowing the Federal
Government to aggrandize itself without limit. Thomas Jefferson was
deeply suspicious of the whole notion of implied powers; he saw clearly
where it might lead. He and Alexander Hamilton had a famous argument
over whether a national bank fell within necessary and
proper powers of Congress. Hamiltons broad view of Federal
powers prevailed far more, in the long run, than Hamilton himself
would have wished.
Today the implied
(i.e., unauthorized) powers claimed (i.e., usurped) by the Federal
Government enormously outnumber and utterly swamp the few powers
actually granted in the Constitution. Thats why Federal spending,
deficits, and our taxes are so high.
The Federal Government has tended to burst the seams of
constitutional limits right from the beginning. But for many years, it was
customary to justify any proposed law by showing that it was within the
bounds of the Constitution. Today the question rarely comes up; its
assumed, without debate, that Congress can legislate just about anything
This makes the Constitution
almost meaningless. Why does it list those few specific powers if the
government may also claim and exercise thousands of others as well?
Hardly anyone complains about
unconstitutional government. But millions would complain if their
unconstitutional government checks stopped coming. The Framers of the
Constitution worried constantly about the problem of usurpation; but few
Americans today even understand the word usurp. It has dropped
out of our public vocabulary, so we dont recognize usurpation when
we see it.
Lets put it this way: you
dont hear the word usurpation in Congress for the same
reason you dont hear the word fornication in Las Vegas.
When a vice becomes popular and profitable, it loses its proper name.
The greatest usurper of power in
American history was Abraham Lincoln. By denying the right of states to
secede and equating secession with rebellion, he enabled
himself, at a stroke, to claim countless implied powers. As his defender
Harry V. Jaffa puts it, No president before him had ever discovered
the reservoir of constitutional power within [the] presidential
Reservoir indeed! Because
preventing secession (about which the Constitution says nothing) became,
in Lincolns mind, preserving the Constitution, he
felt justified in making war on the states, raising armies and money on
his own initiative, arresting elected officials, suppressing free speech,
shutting down the press, and establishing dictatorial military
governments in place of the state governments. It was the worst period of
repression in American history, and Lincolns actions were directed
against the freedoms of the North as well as the South.
If Jefferson, who advocated the
right of secession, had been alive during the war, he might well have been
arrested for treason.
All this flowed from the
application of the runaway idea of implied powers. Lincoln showed that
the executive branch, as well as the legislative, can play the game of
usurpation. It helped that he had the support of a Republican Congress,
since many congressional Democrats had gone home to their seceding
states. Otherwise the Democratic majority would have impeached him for
his bold seizures of power.
At Gettysburg Lincoln proclaimed
a new birth of freedom. What he actually brought the
country was the death of limited government.