Perilous Ambiguities in the Constitution

Guest Commentary by Edward Cline:

The rectangle of light in the acres of a farm was the window of the library of Judge Narragansett. He sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: “Congress shall make no law abridging the freedom of production and trade….”*

Writing about the presumption and power of Congress to enact health-care legislation, Andrew P. Napolitano in his Wall Street Journal article “Health-Care Reform and the Constitution” (Sept. 15) states unambiguously that the power is non-existent -- that is, that the power is not one of the enumerated powers granted to Congress. It is irrelevant, he states, that politicians, and even the Supreme Court, believe that the term regulate means control of the movement or existence of commodities and services via taxation, quotas, or any other species of interventionism across state lines or within them.

Napolitano limits his article to the subject of health insurance and why it is not “regulated” by Congress. He notes that all fifty states prohibit the sale of such insurance across state lines, e.g., a company or broker domiciled and licensed in Virginia being prohibited from selling policies in Maryland, unless the company is also domiciled and licensed in Maryland to sell much the same product. He then holds forth the specter of Congress simply nationalizing or socializing the whole business and “regulating” it on federal terms by making health insurance compulsory, with the ultimate “single payer” bureaucracy domiciled in Washington.

He opens his article with an interesting and revealing exchange he had with a South Carolina representative, whom he challenged to show him where in the Constitution the power was granted to the government to regulate the delivery of health care.

He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Well, that would be an easy task, notes Napolitano, referring to the Ninth and Tenth Amendments and to the enumerated powers granted to Congress. Napolitano, however, was dealing with a thuggish mentality that will not be stopped by words that restrict his power to legislate any kind of “stuff” that comes to his mind. The former Superior Court judge argues for Congress to “regulate” the sale of health care insurance by prohibiting the states from controlling its sale across state lines (in the interests of free trade), perhaps on the premise that such an action would give Congress less of an excuse to nationalize health care. While this is a laudable aim, and certainly consistent with the intent -- or, rather, a rational understanding -- of the commerce clause, it overlooks the broader issue, which is the language itself.

The two most destructive phrases in the Constitution are destructive, not because they explicitly or intentionally contradict the principles underlying the document’s wording and otherwise explicit language, but because they are arguably ill- or undefined, and, to later generations of scholars and jurists, ambiguous and open to “interpretation.” Their ambiguity later permitted contradictory amendments to the Constitution together with legislation that all but rendered the Constitution a dead document, giving leave to presidents and Congress over the decades to advocate and enact a mammoth, costly, and liberty-destroying mountain of “stuff.”

These phrases are general welfare and regulate commerce.

Britannica cites “commerce clause” in the Constitution and the presumption and power in Article I, section 8:

“To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

And then makes this bald but true statement: “It is the legal foundation of much of the U.S. government’s regulatory authority.” Legal? Yes. Moral? No.

Concerning the “general welfare” clause, the Preamble of the Constitution reads:

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.

The Cato Journal notes:

Article I, section 8 of the Constitution confers upon Congress certain enumerated powers and a potentially more sweeping authority to provide for the general welfare, a goal also set forth in the Preamble. For proponents of a limited central government, the General Welfare Clause has been a source of great mischief. Interpreted elastically by constitutionalists of the "living document" persuasion, the Clause has helped serve up a gourmand’s feast of government programs, regulations, and intrusions that would have been unimaginable to the Framers. [Italics mine.]

I stressed elastically because better minds were not so elastic in their positions on the clause. Thomas Jefferson, for example, expressed his doubts about the meaning of “general welfare”:

[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. [Writings of Thomas Jefferson ,Library Edition, 1904, 147–149.]

The clause, in short, notes the Cornell Law site, “is not an independent grant of power, but a qualification of the taxing power.” (10) But, is it a “qualification of the taxing power” of Congress? Neither Jefferson nor any of his contemporaries go on to discuss the precise meaning of the phrase “general welfare.” (9) That meaning has been a point of contention for over two hundred years, but a succession of statists in Congress has taken advantage of its ambiguity to lay taxes and enact regulations ad libitum for any purpose the South Carolina representative and his political ancestors and contemporaries have pleased.

James Madison, writing about the objects embraced by the power, noted that:

...no state be at liberty to impose duties on any goods, wares, or merchandise, imported by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.” [Madison’s resolution for empowering Congress to regulate trade, November 30, 1785]

Jefferson weighed in with:

To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.

The Constitution site remarks, referring the best dictionary available to the Founders:

Samuel Johnson's dictionary defined "to regulate" as "1. To adjust by rule or method ... 2. To direct." This definition is supported by Chief Justice Marshall's noted description of the power to regulate as the power "to prescribe the rule by which commerce is to be governed." Chief Justice Melville Fuller later reiterated a similar formulation: "The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed." This formulation suggests that the aim of "regulation" must be limited to the governance of commerce, although Supreme Court jurisprudence is not uniform on this topic.

Edward Banfield (1916 – 1999), a political scientist, argued that the attempt to define the outer limits of national power, as Article I, Section 8 of the Constitution does, was likely a flawed enterprise, doomed to failure from the very beginning:

Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government — meaning government in accordance with the will of the people — and the maintenance of limits on the sphere of government.

Banfield blamed human nature, surely what the drafters of the Constitution had in mind, for federal encroachments on individual freedom. But, half the blame can be laid to the ambiguity of the term regulate, and also to the clause general welfare.

Again, the term regulate is employed ambiguously. Did Marshall, Madison, Jefferson, and others mean that it empowered the government to regulate commerce through taxation or by quotas or by some other mode of intervention? Or did they imply the establishment of objective law, by which free trade among individuals and corporations would be protected from intervention? This ambiguity has never been resolved.

What was the purpose of the commerce clause? The Father of the Constitution, Madison, wrote the following:

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. - [Letter to Cabell, February 13, 1829.]

But Congress has arbitrarily assumed the “remedial power” not only to “reform” health care but to “regulate” virtually every other realm of human activity in the United States. The solution to that “remedial power” is to dislodge it from Congress.

Joseph Story (1779-1845), Supreme Court justice and protégé of John Marshall, expressed the conflict succinctly in his Commentaries on the Constitution of the United States (1833):

Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. [Book 3, Chapter 15, § 1075.]

Story might have added, but unfortunately did not include in his warning, the demolition of all constitutional boundaries between government and the individual. This is an instance of how an ambiguity in crucial language can become perilous and destructive, even in the most well-intentioned and cogent statements. This is also why I have trouble granting credibility to statements such as that found on the Campaign for Liberty site, which is written from a sense of certitude, but not from a certainty that could be validated by subjecting it to rational scrutiny and explication:

Far from granting Congress the power to create the massive regulatory, central economic planning, nearly limitless government in which we live today... the Commerce Clause was intended to be a restriction on States, not a positive grant of power to Congress at all! Why then is it under "Powers of Congress"? Simple, the federal government has the power to resolve trade disputes among the states and essentially provide for free trade among the states. Perhaps no clause in the Constitution has been so perverted as the Interstate Commerce Clause.

Even though I would like to agree with that statement, I could not say with any conviction that this is what the commerce clause, or even the general welfare clause, means or that this is what the Founders meant and intended -- not without precise definitions of general welfare and regulate. Those two terms have been bonded together by statists into a poisonous, amphioxus sanction by collectivists and other enemies of freedom to the detriment of freedom.

What is needed is a Judge Narragansett to scour the Constitution and correct its debilitating and destructive amendments and to define its language with exactitude, so that a government instituted among men may better and absolutely “secure these rights” to the freedom of production and trade -- including the trade in health care, health care insurance, and every other voluntary transaction among individuals. Then, perhaps, predatory creatures like Napolitano’s South Carolina congressman would not dare contemplate -- indeed, he would be prohibited from -- abridging our rights and reducing our liberties with “stuff.”

*From Atlas Shrugged, p. 1168. New York: Dutton 35th Anniversary Edition.

Crossposted at The Dougout