Limited Government in the Constitution

1. Limited Government in the Constitution When the Founding Fathers were drafting our Constitution, they imposed certain requirements upon themselves. We were still engaged in our War for Independence, and one of the causal issues was our desire to be free of any dictatorial form of government. Dancing to the tune of the British Crown was of primary importance. Of equal importance was the requirement that whatever form of government we chose should be inherently “dictator free.” Thus, our system must assure that we had limited government in the constitution. To accomplish that, our Founders began by establishing one Federal Legislature, our Congress, defined in Article 1 of our Constitution. Congress consisted of two bodies, the House of Representatives, and the Senate. The people were represented by members of the House; the States were represented by the Senate, with each State having only two Senators with overlapping terms of office. To further assure limited government in the constitution, the Constitution, in Article 1, Section 8, listed the powers granted to the Federal Government. These powers, known as the “Enumerated Powers”, each specified a function that, in fact, only a Federal Government, can and must perform. For example, the Founders recognized that, as a Country, our interaction with foreign governments or other external events must be done at the Federal level. The Enumerated Powers

2. Several of these powers are: •“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” •“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” •“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” •“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” •“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;” •“To provide and maintain a Navy;” It is clear in the language of these powers, and the others not listed here, that these actions must be handled at the Federal level. The 10th Amendment to the Constitution states that these powers are reserved solely for the Federal Government; everything not listed is reserved for the individual States or the people themselves. This is how the Founders assured limited government in the constitution. The Conservative Movement The foundations upon which the conservative movement rests, are our Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The question of libertarian vs conservative could not be clearer. These ideals were carried through to our Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Let’s consider the “Necessary and Proper” clause, and how it applied to commerce. “Interstate commerce” involves the movement of goods and services between two or more States. “Intrastate commerce” involves the movement of goods and services entirely within a given State. The “Necessary and Proper Clause” reads: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

3. Over the decades since our Constitution was ratified, activists in Congress and the various courts began taking liberties with the interpretation of our Constitution. The “commerce clause”, the first Federal power listed above, provides a good example of activism at work, beginning with the Marshall Court (1801-1835). It didn’t take long for activists to begin chipping away some of the protections from an expansive federal government that were in our Constitution. Decisions by the Marshall Court enabled Congress to regulate both intrastate and interstate commerce in certain situations. The Commerce Clause in the 20th Century The conservative movement had more limited government issues to deal with as a result of numerous Supreme Court decisions. Beginning with National Labor Relations Board (NLRB) v. Jones & Laughlin Steel Corp, 301 U.S. 1 (1937), the Court opened up a wide interpretation of the Commerce Clause, thus allowing Federal intrusion into purely intrastate activities. Other decisions during the 1940’s continued to expand the powers of Congress to regulate intrastate activity. From this decision until 1995, the Court did not invalidate a single law on the basis of the Commerce Clause. In Federalist #11, authored by Alexander Hamilton under the pen name “Publius”, the Commerce Clause states that trade between foreign countries and the individual states must be under the same set of rules. Essentially, according to Hamilton, the Federal Government has the responsibility of setting terms of trade between the states and foreign countries. How that translates into Federal lawmaking of labor practices, employee wages and benefits, and medical care is something that I’m sure Mr. Hamilton would take exception to.

4. The conservative movement has much work to do, and the legal concept of “stare decisis” is a major factor. Taken at its face value, it seems to make sense; previously made decisions in certain cases should be taken into account when subsequent cases are being decided. But what happens if an earlier decision is the result of an activist Court, a Court more interested in expanding the role of government than in keeping in place the intended limitations of the Founders. There are no good answers to this question. If a recent decision actually refutes an earlier decision, does that open the door for the earlier litigants to retry their case? How many such cases are there? Can the effects of the earlier decisions be reversed at all? Are the earlier litigants still alive or in business? Can damages be reasonably assessed? These are all important questions, and practical measures will have to be developed to determine the path to take. There is no known “quick and dirty” fix that will assure that justice will prevail.