15. Congress, the Courts, and the Constitution

Cato Handbook For Policymakers, 8th Edition (2017) • Cato Handbook for Policymakers

Congress should

• encourage constitutional debate in the nation by engaging in constitutional debate in Congress and in public discussions, as in the nation’s earlier history;

• enact nothing without first consulting the Constitution for proper authority and then debating that question on the floors of the House and the Senate;

• move toward restoring constitutional government by carefully returning power wrongly taken over the years from the states and the people; and

• reject judicial nominees who do not appreciate that the Constitution is a document of delegated, enumerated, and thus limited powers.

For much of America’s history, the Constitution was alive in the hearts and minds of the people and their leaders alike. They saw the document as defining them as a people animated by liberty; and they understood, albeit unevenly at times, that its basic function was to authorize and then limit the powers that were instituted through it. More often than not, therefore, measures aimed at expanding the federal government never made it out of Congress or, if they did, they were vetoed by presidents — not only on policy grounds but on constitutional grounds as well.

Today, however, in this chapter aimed at advising members of Congress about their authority and responsibilities under the Constitution, one hardly knows where to begin, so far has Congress taken us from constitutional government since the dawn of the 20th century. James Madison, the principal author of the Constitution, assured us in Federalist No. 45 that the powers of the new government were “few and defined.” No one believes that describes Washington’s powers today. Instead, Congress and the president exercise vast powers that are nowhere authorized by the Constitution as originally understood. Individuals and businesses are regulated as never before. And so undisciplined by constitutional constraints is congressional spending that our national debt today is approaching $20 trillion and growing, and our unfunded liability is well over a staggering $100 trillion.

As history demonstrates, this cannot go on. If we do not begin to restore constitutional discipline and, indeed, constitutional legitimacy, America will go the way of other nations that have ignored the basic moral, political, legal, and economic principles our Constitution was written and ratified to secure.

For a while after the realigning midterm elections of 1994 it looked like Congress was at last going to rethink its seemingly inexorable push toward ever‐​larger government. In fact, the 104th Congress saw the creation in the House of a 100‐​strong Constitutional Caucus dedicated to promoting the restoration of limited constitutional government. And shortly thereafter President Bill Clinton announced that the era of big government was over. But the spirit of that Congress lasted only a short time before the usual spending and regulating returned.

With the midterm “tea party” elections of 2010, however, the constitutional winds blew again, more strongly, so much so that on the first full day of the 112th Congress, members of the House, for the first time in its history, took turns reading the Constitution aloud. But here too the voices of the voters who demanded a return to constitutional principles would soon be ignored, especially in the Senate. Yet the principles endure, as does the Constitution itself. It is still the law of the land, however little followed. And the implications of ignoring it have not changed either. Limited government is the foundation for liberty, prosperity, and the vision of equality that many Americans still cherish — to say nothing of millions around the world who are still inspired by the document.

To be sure, many members of Congress — and many Americans today as well — seem to believe that prosperity is brought about primarily by government programs, not by individuals acting in their private capacities in the private sector. And they believe, too, that the Constitution authorizes Congress to enact such programs. But there are many other Americans in this deeply divided country who know better. They understand that government rarely solves problems as promised; in fact, it usually makes them worse. More important still, they understand that a life dependent on government is both impoverishing and impoverished. They want no part of such dependence. They want a life of independence. They yearn to be free.

Reducing Government

If we are to move toward restoring constitutionally limited government and the prosperity it encourages — toward a world in which government is no longer expected to solve our problems, but individuals, families, firms, and communities assume that responsibility, indeed, take up that challenge — the basic questions are how much to reduce and how fast to do it. Those are not questions about how to make government run better — waste, fraud, and abuse will ever afflict government — but about the fundamental role of government in America.

How Much to Reduce Government

The first of those questions — how much to reduce government — would seem initially to be a matter simply of policy: What do we want government to do and what can we remove from government’s responsibility? Yet if we take the Constitution seriously, the Framers largely answered those questions. Indeed, they thought long and hard about the proper role of government. They drew on fundamental moral principles about individual liberty and set forth the broad policy outlines in the Constitution, expressly enumerating — and thus limiting — the powers of the federal government.

Thus, setting aside for the moment all practical concerns, the Constitution tells us as a matter of first principle how much to reduce government. It tells us, first, what powers the federal government in fact has and, second, how governments at all levels must exercise their powers — by respecting the rights of the people.

That means that if a federal power or program is not authorized by the Constitution, it is illegitimate. Given the present size and scope of government, that is a stark conclusion, to be sure. But it flows quite naturally from the Tenth Amendment, the final statement in the Bill of Rights, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In a nutshell, the Constitution establishes a government of delegated, enumerated, and thus limited powers. As the Federalist Papers make clear, the Constitution was written not only to empower the federal government but to limit it as well.

Since the Progressive Era, however, the politics of government‐​as‐​problem‐​solver has dominated our public discourse. And since the New Deal constitutional revolution, following President Franklin Roosevelt’s infamous Court‐​packing threat, the Supreme Court has abetted that view by standing the Constitution on its head, turning it into a document of effectively unenumerated and hence unlimited powers.

Indeed, limits on government today, when we’ve had them, have come largely from political and budgetary rather than constitutional considerations. Thus, when government has failed to undertake a program in recent years, it has not been because of any perceived lack of constitutional authority but because of practical and political limits on the power of government to tax, borrow, and regulate. That is the mark of a parliamentary system, limited only by periodic elections, not of a limited, constitutional republic like we have.

The Founders could have established such a system, of course. They did not. But we have allowed those marks of a parliamentary system to supplant the system they gave us. To begin restoring truly limited government, therefore, we have to do more than define the issues as political or budgetary. We have to go to the heart of the matter and raise the underlying constitutional questions. We have to ask the most fundamental question: Does the government have the authority, the constitutional authority, to do what it is doing?

How Fast to Reduce Government

But as a practical matter, before Congress or the courts can relimit government as the Constitution requires, they need to take seriously the problems posed by both the present state of public opinion on the subject and, even more, individual dependence on public programs. After all, a substantial number of Americans — to say nothing of the institutions that influence public opinion — have little appreciation for or even apprehension of the constitutional limits on activist government.

Thus, in addressing the question of how fast to reduce government, we have to recognize that the Supreme Court, after nearly 80 years of arguing otherwise, is hardly in a position, by itself, to relimit government in the far‐​reaching way a properly read and applied Constitution requires. Nor does Congress, at this point, have sufficient moral authority or support to end tomorrow the vast array of programs it has enacted over the years — even if it wanted to. Worse still, millions of Americans have become dependent on those programs. For that reason alone, Congress will have to move slowly and carefully, balancing long‐​term goals with short‐​term necessities.

For either Congress or the Court to be able to do fully what should be done, therefore, a proper foundation must first be laid. At bottom, public opinion must evolve such that a sufficiently large portion of Americans support the changes needed. When enough people come forward to ask — indeed, to demand — that government limit itself to its constitutional powers, thereby freeing individuals, families, firms, and communities to solve their own problems, we will know we are on the right track. In that regard, one can only be encouraged by the handmade signs seen in the early, massive tea‐​party rallies in recent years that said, “We want less!” There is an untapped reservoir of support in America for less government and genuine independence.

Just how deep or wide that reservoir is remains to be seen, of course. Certainly, the debate today is different than it was in the 1960s and 1970s, when proposals for “national economic planning” could be introduced in Congress without embarrassment. And Americans have seen what happens in other countries when governments tax, spend, and regulate without restraint. Still, a good deal more must be done before Congress and the courts are able to move very far in the right direction. We are a long way from restoring constitutional government in America. To move the process along, Congress should take the lead in the following ways.

Engaging in Constitutional Debate in Congress and in Public Discussions

For much of America’s early history the Constitution played a prominent role in our political discourse. Members of Congress and presidents actively debated whether proposed measures were consistent with the Constitution. They did not, as often happens today, simply assume that they had the authority to introduce a given bill, pass it, and then leave it to the courts to determine its constitutionality. Nor did presidents make a practice of ruling by executive fiat and then arrogantly saying to those who took exception, “So sue me.” They took seriously their oaths to uphold the Constitution. That sense of moral and constitutional responsibility needs to be revived.

As noted above, it was revived, briefly, by a number of House freshmen in the 104th Congress. Those representatives created an informal Constitutional Caucus to encourage constitutional debate in Congress and the nation and, in time, to begin restoring constitutional government. The caucus needs to be revived, along with the spirit behind it, and its work needs to be expanded.

By itself, of course, neither the caucus nor the entire Congress can solve the problems before us. To be sure, in principle, and in a reversal of all human experience, Congress in a day could agree to limit itself to its enumerated powers and then roll back the countless programs it has enacted by exceeding its constitutional authority. But authoritative opinions from the Supreme Court would be needed to reverse a substantial body of largely post–New Deal decisions and embed those restraints in “constitutional law” — even if they have been embedded in the Constitution from the outset, the Court’s modern readings of the document notwithstanding.

The Goals of the Constitutional Caucus

The ultimate goal of the caucus and Congress, then, should be to encourage the Court to reach such decisions. Despite the distinction between politics and law, history teaches that the Court does not operate entirely in a vacuum. To some degree, public opinion is the precursor and seedbed of its decisions. Thus, the more immediate goal of the caucus should be to influence the debate in the nation by influencing the debate in Congress. To do that, it is not necessary or even desirable, in the present climate, that every member of Congress be a member of the caucus, however worthy that end might be. But it is necessary that those who join the caucus be committed to its basic ends. And it is necessary that members establish a clear agenda for reaching those ends.

Here is the problem in a nutshell: every day, members of Congress are besieged by requests to enact countless measures to solve endless problems. Indeed, listening to much of the recent campaign debate, one might conclude that no problem is too personal or too trivial to warrant the attention of the federal government no less. Yet most of the “problems” Congress spends most of its time addressing — from health care to day care, education, housing, economic competition, and so much more — are simply the personal and economic problems of life that individuals, families, and firms, not governments, should be addressing. What is more, as a basic point of constitutional doctrine, under a constitution like ours, interpreted as ours was meant to be interpreted, there is little authority for government at any level to address such problems.

Properly understood and used, then, the Constitution can be a valuable ally in the efforts of the caucus and Congress to reduce the size and scope of government. For in the minds and hearts of most Americans, it remains a revered document, however little it may be understood by a substantial number of them. Thus, a central purpose of congressional debate should be to bring about a better understanding of our basic legal document and to restore the idea in the minds of the people that the Constitution does not authorize the kind of government we have today. In particular, importuning constituents need to be told, “I have no authority to do what you want me to do.”

The Constitutional Vision

If the Constitution is to be so used, however, the main misunderstanding that surrounds it today must be recognized and candidly addressed. That misunderstanding is that the Constitution, without further amendment, is an infinitely elastic document that allows government to grow to meet public demands of whatever kind. Americans must come to see that the Founders, who were keenly aware of the expansive tendencies of government, wrote the Constitution precisely to check that kind of thinking and that possibility. To be sure, they meant for government to be our servant, not our master. But they meant it to serve us in a very limited way — by securing our rights, as the Declaration of Independence says, and by doing those few other things that government does best, as spelled out expressly in the Constitution.

In all else, we were meant to be free — to plan and live our own lives, to solve our own problems. That is what freedom is all about. Some may characterize that vision as tantamount to saying, “You’re on your own.” But that kind of response simply misses the point. In America, individuals, families, and organizations have never been “on their own” in the most important sense. They have always been members of communities, of civil society, where they could live their lives and solve their problems by following a few simple rules about individual initiative and responsibility, respect for property and promise, and charity toward the few who need help from others. Massive government planning and programs have upset that natural order — less so in America than elsewhere, but deeply here all the same.

Those are the issues that need to be discussed, in both human and constitutional terms. As a people, we need to rethink our relationship to government. We need to ask not what our government can do for us, but what we can do for ourselves and, where necessary, for others — not through government but apart from government, as private citizens and organizations. That is what the Constitution was written to enable. It empowers government in a very limited way. It empowers people — by leaving us free — in every other way.

To proclaim and eventually secure that vision of a free people, the Constitutional Caucus should reconstitute itself and rededicate itself to that end at the beginning of the 115th Congress and the beginning of every Congress thereafter. The caucus should be both of and above Congress — as the constitutional conscience of Congress. Every member of Congress, before taking office, swears to support the Constitution. Today that’s hardly a constraining oath, given the modern Court’s open‐​ended reading of the document. Members of the caucus should dedicate themselves to the deeper meaning of that oath. They should support the Constitution the Framers gave us, as amended by subsequent generations, not as “amended” by the Court’s expansive interpretations.

Encouraging Debate

Acting together, the members of the caucus could have a major impact on the course of public debate in this nation — not least by virtue of their numbers. What is more, there is political safety in those numbers. As Benjamin Franklin might have said, no single member of Congress can likely undertake the task of restoring constitutional government on his own; in the present climate, he would surely be hanged, politically, for doing so. But if the caucus hangs together, the task will be more bearable and enjoyable — and a propitious outcome more likely over time.

On the caucus agenda, then, should be those specific undertakings that will best stir debate and thereby move the climate of opinion. Drawn together by shared understandings, and unrestrained by the need for serious compromise, the members of the caucus are free to chart a principled course and employ principled means, which they should do.

They might begin, for example, by surveying opportunities for constitutional debate in Congress, then make plans to seize those opportunities. Clearly, when new bills are introduced, or old ones are up for reauthorization, an opportunity is presented to debate constitutional questions. But even before that, when plans are discussed in party sessions, members should raise constitutional issues. To get things going, the caucus might study the costs and benefits of eliminating clearly unconstitutional programs, the better to determine which can be eliminated most easily and quickly.

Above all, the caucus should look for strategic opportunities to employ constitutional arguments. Too often, members of Congress fail to appreciate that if they take a principled stand against a seemingly popular program — and state their case well — they can seize the moral high ground and ultimately prevail over those who are seen in the end to be more politically craven.

All of that will stir constitutional debate — which is just the point. For too long in Congress that debate has been dead, replaced by the often dreary budget debate. America was not established by men with green eyeshades. It was established by men who understood the basic character of government and the basic right to be free. Debate centered on the Constitution needs to be revived. It needs to be heard not simply in the courts — where it is twisted through modern “constitutional law” — but in Congress as well.

Consulting the Constitution for Proper Authority and Debating That Point in Congress

It would hardly seem necessary to ask Congress, before it enacts any measure, to cite its constitutional authority for doing so. After all, is that not part of what it means to carry out, as a member of Congress, one’s oath to support the Constitution? And if Congress’s powers are limited by virtue of being enumerated, then presumably there are many things Congress has no authority to do, however worthy those things might otherwise be. Yet so far have we strayed from constitutional thinking that such a requirement today is treated perfunctorily — when it is not ignored altogether.

The most common perfunctory citations — usually captured in constitutional boilerplate — are to the General Welfare, Commerce, and Necessary and Proper Clauses of the Constitution. It is no small irony that those clauses were written not only as grants of power but also as shields against overweening government; yet today they are simply swords of federal power.

The General Welfare Clause

The first of Congress’s 18 enumerated powers in Article I, Section 8, is the power to tax (and, by implication, spend) “to pay the debts and provide for the common defense and general welfare of the United States.” In Federalist No. 41 and elsewhere, Madison argued, as did Jefferson and others, that the General Welfare Clause was meant to serve as a brake on Congress’s power to tax and spend in furtherance of its other enumerated powers or ends, all of which, he said, were subsumed under “the general welfare.” Taxing and spending pursuant to those ends had to serve the general welfare, not the welfare of particular parties or sections of the country. Madison’s view contrasted sharply with that of Hamilton, who believed that Congress had an independent power to tax and spend for the general welfare.

The problem with Hamilton’s view was stated clearly in 1828 by South Carolina’s William Drayton. Rising on the floor of the House, he said that it would undermine the very centerpiece of the Constitution, the doctrine of enumerated powers, rendering Congress’s 17 other powers superfluous. Since money can accomplish anything, he continued, whenever Congress wanted to do something it was barred from doing because given no power with which to do it, it could simply declare the act to be serving “the general welfare” and thus escape the limits imposed by enumeration. Indeed, he concluded, what was the point of enumerating Congress’s other powers if it could do whatever it wanted under this sole power?

Unfortunately, in 1936, in dicta and almost in passing, the Supreme Court revisited this early debate and came down, as a practical matter, on Hamilton’s side, declaring that there is an independent power to tax and spend for the general welfare, albeit limited by the word “general.” Then, in 1937, in upholding the constitutionality of the new Social Security scheme, the Court completed the job when it stated the Hamiltonian view not as dicta but as doctrine. But while it reminded Congress of the constraint imposed by the word “general,” the Court added that it would not itself police that restraint but would leave it to Congress to police itself — the very Congress that was distributing money from the Treasury with ever greater particularity. Since that time, the relatively modest redistributive schemes that preceded the New Deal have grown exponentially until today they are everywhere.

In truth, textualists must grant that this was not the most artfully written part of our Constitution. Not surprisingly, Congress, to say nothing of the courts, often found the line it draws difficult to discern and apply even before the New Deal Congresses effectively ended fiscal discipline. Yet, a middle ground between Madison and Hamilton can be found if we focus on the power of Congress to tax and spend for the general welfare of the United States, as was done during most of the pre–New Deal era, albeit less as time went on. That interpretation would allow for spending on, among other things, limited infrastructure and certain “public goods” as economists define that idea, citing free‐​rider problems, nonexcludability, and nonrivalrous consumption.

But owing to the imprecision of this clause, it falls rather more to Congress than to the courts to exercise the discipline that is necessary to preserve the Constitution’s overall structure for limited government. Congress needs to rediscover that discipline. Indeed, this is quintessentially an area where Congress needs to take the lead in debating the virtues of limited constitutional government as a political matter rather than leaving it to the courts to find lines that are difficult to find as a legal matter.

The Commerce Clause

The Commerce Clause of the Constitution, which grants Congress the power to regulate “commerce among the states,” was also written primarily as a shield — in this case against overweening state power. Under the Articles of Confederation, to protect local merchants and manufacturers from out‐​of‐​state competitors, states had erected tariffs and other protectionist measures that impeded the free flow of commerce among the states. In fact, the need to break the logjam that resulted was one of the principal reasons for the call for a convention in Philadelphia in 1787. To address the problem, the Framers gave Congress the power to regulate — or “make regular” — commerce among the states. It was meant primarily as a power to facilitate free trade. And it was so used in 1824 in the first great Commerce Clause case, Gibbons v. Ogden.

That functional account of Congress’s commerce power is consistent with the original understanding of the power, the text of the clause (especially the original meaning of “regulate”), and the structural limits entailed by the doctrine of enumerated powers. Yet today, following decisions by the Court in 1937, 1942, and beyond, Congress is able to regulate anything that even “affects” interstate commerce, which in principle is everything. Far from ensuring the free flow of commerce among the states, much of that regulation, for all manner of social and economic purposes, actually frustrates the free flow of commerce. In effect, the commerce power has become a general police power of a kind that the Framers reserved to the states.

The Necessary and Proper Clause

Congress often exercises those redistributive and regulatory powers through the last of its 18 enumerated powers, its power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Thus, the Necessary and Proper Clause affords Congress instrumental powers: it provides Congress the means for executing its other powers or pursuing its other enumerated ends. As such, therefore, it is not an independent power; rather, the means it affords Congress are limited by those other enumerated powers or ends — limited simply to carrying them into execution. Moreover, not any such instrumental powers will do: they must be both necessary for that purpose and proper — “proper” in respecting the other branches, the sovereignty of the states, and the rights of the people.

Just as the explosive growth of the modern redistributive state has taken place almost entirely under the General Welfare Clause, so has the growth of the modern regulatory state taken place almost entirely under the Commerce Clause — as complemented by the Necessary and Proper Clause in both cases. That raises the fundamental question that Drayton raised above, which members of Congress need to keep in mind: If the Framers had meant for Congress to be able to do virtually anything it wanted under just those three clauses, why did they bother to enumerate Congress’s other powers, or defend the doctrine of enumerated powers throughout the Federalist Papers? Those efforts would have been pointless.

Lopez and Its Aftermath: A Case Study in Congressional Indifference

Today, as noted above, congressional citations to the General Welfare, Commerce, and Necessary and Proper Clauses usually take the form of perfunctory boilerplate. When it wants to regulate some activity, for example, Congress makes a bow to the doctrine of enumerated powers by claiming that it has made findings that the activity at issue “affects” interstate commerce — say, by preventing interstate travel. Given those findings, Congress then claims it has authority to regulate the activity under its power to regulate commerce among the states.

Thus, when the 104th Congress was pressed in the summer of 1996 to do something about what looked at the time like a wave of church arsons in the South, it sought to broaden the already dubious authority of the federal government to prosecute such acts by determining that church arsons “hinder interstate commerce” and “impede individuals in moving interstate.” Never mind that the prosecution of arson has traditionally been a state responsibility, there being no general federal police power in the Constitution. Never mind that church arsons have virtually nothing to do with interstate commerce, much less with the free flow of goods and services among the states. The Commerce Clause rationale, set forth in boilerplate language, was thought by Congress to be sufficient to enable it to move forward and enact the Church Arson Prevention Act of 1996 — unanimously, no less.

Yet only a year earlier, in the celebrated Lopez case, the Supreme Court had declared, for the first time in nearly 60 years, that Congress’s power under the Commerce Clause has limits. To be sure, the Court raised the bar against federal regulation only slightly: Congress would have to show that the activity it wanted to regulate “substantially” affected interstate commerce, leading Justice Clarence Thomas to note in his concurrence that the Court was still a good distance from a proper reading of the clause. Nevertheless, the decision was widely heralded as a shot across the bow of Congress. And many in that 104th Congress saw it as confirming at last their view that the body in which they served was simply out of control, constitutionally. Indeed, when it passed the Gun‐​Free School Zones Act of 1990 — the statute at issue in Lopez — Congress had not even bothered to cite its authority under the Constitution, even in boilerplate. In what must surely be a stroke of consummate hubris — and disregard for the Constitution — Congress simply assumed that authority.

But as a mark of how quickly respect for constitutional principle evaporated even in that “radical” 104th Congress, despite the Court’s 1995 Lopez ruling, Congress in 1996 passed the Gun‐​Free School Zones Act again! This time, however, the boilerplate was included in the form of a perfunctory “jurisdictional element,” even as Sen. Fred Thompson of Tennessee reminded his colleagues from the floor of the Senate that the Supreme Court had recently told them that they “cannot just have some theoretical basis, some attenuated basis” under the Commerce Clause for such a statute. The prosecution of gun possession near schools, like the prosecution of church arsons, is very popular, of course, as state prosecutors well know. But governments can address problems only if they have authority to do so, not from good intentions alone. Indeed, the road to constitutional destruction is paved with good intentions.

Congressional debate on these matters is thus imperative: it is not enough for Congress simply to say the magic words — “General Welfare Clause,” “Commerce Clause,” “Necessary and Proper Clause” — to be home free, constitutionally. Not every debate will yield satisfying results, as the examples above illustrate. But if the Constitution is to be kept alive, there must at least be debate. Over time, good ideas tend to prevail over bad ideas, but only if they are given voice. The constitutional debate must again be heard in the Congress of the United States as it was over much of our nation’s history, and it must be heard before bills are introduced, much less enacted. The American people can hardly be expected to take the Constitution and its limits on government seriously if their elected representatives do not.

Restoring Constitutional Government by Carefully Returning Power Wrongly Taken from the States and the People

If Congress should enact no new legislation without grounding its authority to do so securely in the Constitution, so too should it begin repealing legislation not so grounded, legislation that arose by assuming power that rightly rests with the states or the people. To appreciate how daunting a task that will be, simply reflect again on Madison’s observation that the powers of the federal government under the Constitution are “few and defined.”

But the magnitude of the task is only one dimension of its difficulty. Let us be candid: there are many in Congress who will oppose any efforts to restore constitutional government for any number of reasons, ranging from the practical to the theoretical. Some see their job as one primarily of representing the interests of their constituents, especially the short‐​term interests reflected in the phrase “bringing home the bacon.” Others simply like big government, whether because of an “enlightened” Progressive Era view of the world or because of a narrower, more cynical interest in the perquisites of enhanced power. Still others believe sincerely in a “living constitution,” one extreme form of which — the “democratic” form — imposes no limits whatever on government save for those arising from periodic elections. Finally, there are those who understand the unconstitutional and hence illegitimate character of much of what government does today but believe it is too late to do anything about it. All of those people and others will find reasons to resist the discrete measures that are necessary to begin restoring constitutional government. Where necessary, their views will have to be accommodated as the process unfolds.

Maintaining Support for Limited Government

Given the magnitude of the problem, and the practical implications of repealing federal programs, a fair measure of caution is in order. As the nations of Eastern Europe and the former Soviet Union learned, it is relatively easy to get into socialism — just seize all property and labor and place it under state control — but much harder to get out of it. It is not simply a matter of returning what was taken, for much changed as a result of the taking. People have died and new people have come along. Public law has replaced private law. And new expectations and dependencies have arisen and become settled over time. The transition to freedom that many of those nations have experienced, to one degree or another, is what we and many other nations around the world today are facing, to a lesser extent, if we too try to reduce the size and scope of our governments.

As programs are reduced or eliminated, then, care must be taken to do as little harm as possible — for two reasons at least. First, there is a sense in which the federal government today, vastly overextended though it is, stands in a contractual relationship with the American people. That idea is very difficult to pin down, however, for once the real contract — the Constitution — has broken down, the “legislative contracts” that arise to take its place invariably come down to programs under which some people have become dependent upon others, although neither side had much say in the matter at the outset. Whatever its merits, that contractual view is held by a goodly portion of the public, especially regarding so‐​called middle‐​class entitlements.

That leads to the second reason why care must be taken in restoring power to the states and the people, namely, that the task must be undertaken, as noted earlier, with the support of a substantial portion of the people — ideally, at the urging of those people. Given the difficulty of convincing people — including legislators — to act against their relatively short‐​term interests, it will take sound congressional judgment about where and when to move. More important, it will take keen leadership, leadership that is able to frame the issues in a way that will communicate both the rightness and the soundness of the decisions that are required.

In exercising that leadership, there is no substitute for staying on message and keeping the message simple, direct, and clear. The aim, again, is both freedom and prosperity. We need to appreciate how the vast government programs we have created over the years have actually reduced the freedom and well‐​being of all of us — and have undermined the Constitution besides. Not that the ends served by those programs are unworthy — few government programs are undertaken for worthless ends. But individuals, families, private firms, and communities could bring about most of those ends voluntarily and at far less cost if only they were free to do so — especially if they were free to keep the wherewithal that is necessary to do so rather than give it to governmental redistributors. If individual freedom and individual responsibility are values we cherish — indeed, are the foundations of a good society — we must come to appreciate how our massive government programs have undermined those values and, with that, the good society itself.

Redistributive Programs

Examples of the kinds of programs that should be returned to the states and the people are detailed elsewhere in this Handbook, but a few warrant mention here. Without question, the most important example of devolution to come from the “radical” 104th Congress was in the area of welfare. However flawed the final legislation that President Clinton signed in 1996 may have been from both a constitutional and a policy perspective, it was still a step in the right direction. Ultimately, as discussed more generally below, welfare should not even be a state program. Rather, it should be a matter of private responsibility, as it long was in America. But the process of getting the government out of the business of charity — and the federal government especially, for the Constitution grants it no such authority — was at least begun in the 104th Congress.

Eventually, that process should be repeated in every other “entitlement” area, from individual to institutional to corporate, from Social Security and Medicare to the National Endowment for the Arts to the Department of Agriculture’s Market Access Program, and on and on. One assumes that each of those programs was started for a good reason, yet each involves taking from some and giving to others — policies that are both wrong and unconstitutional, to say nothing of monumentally inefficient. Taken together, they put us all on welfare in one way or another, and we are all the poorer for it.

Some of those programs will be harder to reduce, phase out, or eliminate than others, of course. Entitlement programs with large numbers of beneficiaries, for example, will require transition phases to minimize harm and maintain public support. Other programs, however, could be eliminated with relatively little harm. Does anyone seriously doubt that there would be art in America without the National Endowment for the Arts (NEA)? Indeed, without the heavy hand of government grantmaking, the arts would likely flourish as they did long before the advent of the NEA — and critics would not be made to pay, through their taxes, for art they abhor.

In fact, it is the transfer programs in “symbolic” areas that may be the most important to eliminate first since they have multiplier effects reaching well beyond their raw numbers, and those effects are hardly neutral on the question of reducing the size and scope of government. As a matter of principle, does anyone seriously believe there is any constitutional authority whatever for the National Endowment for the Arts, the National Endowment for the Humanities, the Corporation for Public Broadcasting, or the Department of Education? Yet each raises concerns about free speech — to say nothing of their potential for undermining the cause of limiting government. Not a few critics have pointed to the heavy hand of government in those symbolic areas. And of equal importance is the problem of compelled speech. As Jefferson wrote, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” But on a more practical note, if Congress is serious about addressing the climate of opinion in the nation, it will end such programs not simply because they rest on no constitutional authority but because they have demonstrated a relentless tendency toward propagating ever more government. Indeed, one can hardly expect those institutions to underwrite programs that advocate less government when they themselves exist through government.

Regulatory Redistribution

If the redistributive programs that constitute the modern welfare state are candidates for elimination, so too are many of the regulatory programs that have arisen under the Commerce Clause. Here, however, care must be taken not simply from a practical perspective but from a constitutional perspective as well, for some of those programs may be constitutionally justified. When read functionally, recall, the Commerce Clause was meant to enable Congress to ensure that commerce among the states is regular, and especially to counter state actions that might upset that regularity. Think of the Commerce Clause as an early North American free trade agreement, without the heavy hand of “managed trade” that often accompanies the modern counterpart.

Thus conceived, the Commerce Clause clearly empowers Congress, through regulation, to override state measures that may frustrate the free flow of commerce among the states. But it also enables Congress to take such affirmative measures as may be necessary and proper to facilitate free trade, such as clarifying rights of trade in uncertain contexts or regulating the interstate transportation of dangerous goods. What the clause does not authorize, however, is regulation for reasons much beyond ensuring the free flow of commerce — the kind of managed trade, for example, that is little more than a thinly disguised transfer program designed to benefit one party at the expense of another, picking winners and losers.

Unfortunately, most modern federal regulation falls into that final category, whether it concerns employment or health care, insurance, banking, or whatever. In fact, given budgetary constraints on the ability of government to tax and spend — to take money from some, run it through the Treasury, and then give it to others — the preferred form of transfer today is through regulation. That puts it “off budget.” Thus, when an employer, an insurer, a lender, or a landlord is required by regulation to do something he would otherwise have a right not to do, or not do something he would otherwise have a right to do, he serves the party benefited by that regulation every bit as much as if he were taxed to do so, but no tax increase is ever registered on any public record. The temptation for Congress to resort to such “cost‐​free” regulatory redistribution is of course substantial, and the effects are both far reaching and perverse. Natural markets are upset as incentives are changed; economies of scale are skewed as large businesses, better able to absorb the regulatory burdens, are advantaged over small ones; defensive measures, inefficient from the broader perspective, are encouraged; and general uncertainty, anathema to efficient markets, is the order of the day. Far from facilitating free trade — the commerce power’s basic purpose — redistributive regulation frustrates it. Far from being justified by the Commerce Clause, it undermines the very purpose of the clause.

Federal Crimes

In addition to misusing the commerce power for the purpose of regulatory redistribution, Congress has also misused it to create federal crimes. Thus, a great deal of regulation has arisen under the commerce power that is nothing but a disguised exercise of a general police power that Congress otherwise lacks. As noted earlier, the Gun‐​Free School Zones Act and the Church Arson Prevention Act are examples of legislation passed nominally under the power of Congress to regulate commerce among the states; but the actions subject to federal prosecution under those statutes — gun possession and church arson, respectively — are properly regulated under a state’s general police power, the power of states to “police” or secure our rights. There is no federal power to criminalize such acts, except as an implication of federal sovereignty over federal territory or as may be necessary and proper for carrying into execution Congress’s enumerated powers or ends.

The ruse of using the commerce power to criminalize acts that are the proper jurisdiction of the states should be candidly recognized. Indeed, it is a mark of the decline of respect for the Constitution’s limits on federal power that when we fought a war on liquor early in the last century, we felt it necessary to do so by first amending the Constitution, there being no power otherwise for such a federal undertaking; but today, when we fight a war on drugs — with as much success as we enjoyed in the earlier war — we do so without so much as a nod to the Constitution.

The Constitution lists three federal crimes: treason, piracy, and counterfeiting. Today there are more than 3,000 federal crimes and perhaps 300,000 regulations that carry criminal sanctions. Over the years, no faction in Congress has been immune, especially in an election year, from the propensity to criminalize all manner of activities, utterly oblivious to the lack of constitutional authority for doing so. We should hardly imagine that the Founders fought a war to free us from a distant tyranny only to establish a tyranny in Washington, in some ways even more distant from the citizens it was meant to serve.

Policing the States

The federal government has not only intruded on the police power of the states, it has also failed in its responsibility under the Fourteenth Amendment to police the states. Here is an area where federal regulation has been, if anything, too restrained — yet, when undertaken, often unprincipled as well.

The Civil War Amendments changed America’s federalism fundamentally and very much for the better, giving citizens an additional level of protection, not against federal but against state oppression — the oppression of slavery, obviously, but much else besides. Thus, the Fourteenth Amendment, ratified in 1868, begins by defining both federal and state citizenship, making it clear that the recently freed slaves were citizens of both the United States and the states wherein they resided. It then provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Those provisions of Section 1 are self‐​executing, which means that individuals can go straight into court to enforce them. And Section 5 gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

Unfortunately, confusion surrounded the interpretation and enforcement of the Fourteenth Amendment almost from the start. As the debate over the adoption of the amendment makes clear, the Privileges or Immunities Clause was meant to be the principal source of substantive rights under it, and those rights were meant to include the rights of free people everywhere: property, contract, personal security — in short, our “natural liberties,” as Blackstone had earlier understood “privileges or immunities” to mean. But in 1873, in the notorious Slaughterhouse Cases, a bitterly divided Supreme Court essentially eviscerated the Privileges or Immunities Clause. There followed, for nearly a century, the era of Jim Crow in the South and, for a period stretching to the present, a Fourteenth Amendment jurisprudence as contentious as it is confused.

Increasingly over the 20th century, especially in the second half, modern liberals urged that the amendment be used as it was meant to be used — against state oppression; but their uses were selective, often reflecting a political agenda. On one hand, they urged courts to recognize “rights” that are no part of the natural rights that inform the amendment; on the other hand, they ignored or denigrated rights that were meant to be protected, like property and contract rights. For their part, modern conservatives, partly in reaction, called for the amendment to be used far more narrowly than it was meant to be used — for fear that it might be misused, as it has been. To sort this confusion out, there is no better place to begin than with the text of the abandoned Privileges or Immunities Clause. (Judicial methodology will be discussed more fully below.)

Again, the clause says that no state shall abridge “the privileges or immunities of citizens of the United States.” We need to know, then, what the privileges or immunities of U.S. citizens were. And for that, we turn to the prior text of the Constitution. So doing, we find the few rights mentioned in the original Constitution; the rights enumerated in the Bill of Rights, at least as those can be applied by the Privileges or Immunities Clause against the states; and the many unenumerated rights we “retained” pursuant to the doctrine of enumerated powers as recognized by the Ninth Amendment, as discussed earlier. When the Bill of Rights was ratified, those privileges or immunities, except as otherwise provided, were not held against the states because, in 1833, in Barron v. Baltimore, the Supreme Court held that the Bill of Rights applied only against the government that was created by the document to which it was appended, the Constitution. That changed, however, and changed radically once the Fourteenth Amendment was ratified. No longer could states abridge those constitutional rights.

That reading is perfectly consistent with the debates that surrounded not only the adoption of the Fourteenth Amendment but the prior enactment of the Civil Rights Act of 1866, which the amendment was meant to constitutionalize and which Congress reenacted in 1868, just after the amendment was ratified. All citizens, the Civil Rights Act said in part, “have the right to make and enforce contracts, to sue, be parties and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property.” Such were some of the “privileges or immunities” the Fourteenth Amendment was meant to secure.

Clearly, those basic natural and common law rights, drawn from the classic Lockean, reason‐​based theory of rights, were meant to be protected first by ordinary state law. But just as clearly, states often violated them, either directly or by failing to secure them against private violations, which is why the Fourteenth Amendment was needed. And states continued to violate them even after the amendment was ratified. Now, however, invoking one’s constitutional rights against one’s own state, appeal could be made to the courts, under Section 1 of the amendment, or to Congress, under Section 5, as noted above.

But once the Supreme Court eviscerated the Privileges or Immunities Clause, Fourteenth Amendment jurisprudence took a wandering turn. With the clause no longer available, courts began deciding cases under the less substantive Due Process or Equal Protection Clauses. That led in time to opposing complaints: on one hand were charges, made mainly by modern conservatives, that a rudderless “substantive due process” encouraged judges to invent “rights” and thus override democratic majorities; on the other hand were charges, made mainly by modern liberals, that a narrow “procedural due process” encouraged judges to defer to democratic majorities that were overriding individual rights. As the debate played out over the second half of the 20th century, it became increasingly clear that the heart of the problem was the demise of the Privileges or Immunities Clause and, with it, the theory of rights that stood behind the clause. Yet neither side seemed willing to revive the clause, much less do the serious work of discovering its true content.

That stalemate gave rise to a group of classical liberals and libertarians and to a call for returning to first principles, not only those of our founding but those of our second founding as well, when the principles of the Declaration of Independence, including equal treatment, were incorporated at last into the Constitution. Classical liberals urged reviving not only the doctrine of enumerated powers and the original understanding of the Ninth and Tenth Amendments but also the Privileges or Immunities Clause. Responding to objections from conservatives, we made it clear that that would give the courts and Congress no power to secure modern “entitlements,” which are no part of the common law tradition of life, liberty, and property. Rather, the power to secure rights that would be revived would be limited by the rights to be secured. To be sure, that power reaches intrastate matters when states are violating the provisions of the Fourteenth Amendment. But that is exactly what the amendment was meant to do. And that is the fundamental issue that the Slaughterhouse majority failed to recognize.

Thus, if the facts had warranted it, something like the Church Arson Prevention Act of 1996, depending on its particulars, might have been authorized not on Commerce Clause but on Fourteenth Amendment grounds. If, for example, the facts had shown that arsons of white churches were being prosecuted by state officials whereas arsons of black churches were not, then we would have had a classic case involving the denial of the equal protection of the laws. With those findings, Congress would have had ample authority under Section 5 of the Fourteenth Amendment “to enforce, by appropriate legislation, the provisions of this article.”

Unfortunately, in the final version of the act, Congress struck citations to the Fourteenth Amendment, choosing instead to rest its authority entirely on the Commerce Clause. Not only is that a misuse of the Commerce Clause, inviting further misuses in the future, but assuming the facts had warranted it, it is a failure to use the Fourteenth Amendment as it was meant to be used, inviting future failures. Again, the Fourteenth Amendment has been both underused and misused by both Congress and the courts. But that is no reason to ignore it. Rather, it is a reason to correct the errors and use it properly.

In its efforts to return power to the states and the people, then, Congress must be careful not to misunderstand its role in our federal system. Over the 20th century, Congress assumed vast powers that were never its to assume, powers that belong properly to the states and the people. Those need to be returned. But at the same time, Congress and the courts do have authority under the Fourteenth Amendment to ensure that citizens are free from state oppression — free from “grassroots tyranny.” However much that authority may have been underused or overused, it is there to be used; and if it is properly used, objections by states about federal interference in their “internal affairs” are without merit.

Rejecting Judicial Nominees Who Do Not Appreciate That the Constitution Is a Document of Delegated, Enumerated, and Thus Limited Powers

There is a crucial difference between the Constitution and “constitutional law” — the body of Supreme Court decisions that have interpreted and applied the Constitution, correctly or not, as cases have come before the Court over the years. As noted earlier, Congress could restore constitutional government on its own initiative simply by restricting its actions in the future to those that are authorized by the Constitution and by repealing its past actions that were taken without such authority. But for those limits to become “constitutional law” they would have to be recognized as such by the Supreme Court, which essentially abandoned that view of limited government during the New Deal. Thus, for the Court to play its part in the job of restoring constitutional government — or returning to rule under the Constitution — it must recognize the mistakes it has made, especially following Roosevelt’s Court‐​packing threat in 1937, and then rediscover “the Constitution” — a process it began, however tentatively, in its 1995 Lopez decision when Chief Justice William Rehnquist rested his opinion explicitly on “first principles.”

Unfortunately, in its 2005 California medical marijuana decision, Gonzales v. Raich, the Court abandoned the principles it had articulated in Lopez (and had articulated more fully in its 2000 Morrison decision). But in its 2011 NFIB v. Sibelius decision, challenging Obamacare’s individual mandate and Medicaid expansion, the Court returned to principle, at least insofar as it held that there are limits on Congress’s commerce and spending powers. What those and several other related decisions portend for the future of constitutional restoration by the Court is thus uncertain. At the least, after nearly eight decades of effectively unlimited government, we can say that the idea of a government of constitutionally limited powers is back in play.

But apart from its own actions, Congress is not powerless to influence the Court in the direction of constitutional restoration. As vacancies arise on the Court and on lower courts, Congress has a substantial say about who sits there through its power of advise and consent. To exercise that power well, however, it must have a better grasp of the basic issues than it has shown in recent years during Senate confirmation hearings for nominees for the courts. In particular, the Senate’s obsession with “judicial activism” and “judicial restraint,” terms that in themselves are largely vacuous, only distracts it from the real issue: the nominee’s philosophy of government and conception of the Constitution. To appreciate those points more fully, a bit of background is in order.

From Powers to Rights

The most important matter to grasp is the fundamental change that took place in our constitutional jurisprudence during the New Deal and the implications of that change for the modern debate. For decades after the New Deal constitutional revolution, debate focused far more on rights than on powers, and not surprisingly since the 1937 Court effectively eviscerated the doctrine of enumerated powers. Thus, in Supreme Court confirmation hearings, Senators have sought primarily to learn about a nominee’s views about what rights are “in” the Constitution. That is an important question, to be sure, but it must be addressed within a larger constitutional framework, and that is what has been missing too often from recent hearings.

Clearly, the American debate began with rights — with the protests that led eventually to the Declaration of Independence. In that seminal document, Jefferson made rights the centerpiece of the American vision: rights to life, liberty, and the pursuit of happiness, derived from a premise of moral equality, itself grounded in a higher or natural law discoverable by reason — all to be secured by a government of limited powers made legitimate through consent.

But when they met again 11 years later to draft a constitution, the Framers focused on powers, not rights, and for two main reasons. First, their initial task was to create and empower a stronger government than had been authorized by the Articles of Confederation, which the Constitution did once it was ratified. But their second task, of equal importance, was to limit that government. And for that, they had two main options. They could have listed a set of rights that the new government would be forbidden to violate. Or they could have limited the government’s powers by enumerating them, then pitting one power against another through a system of checks and balances — the idea being that where there is no power there is, by implication, a right, belonging to the states or the people. They chose the second option, for they could hardly have enumerated all of our rights, but they could enumerate the new government’s powers, which were meant from the outset to be, as Madison said, “few and defined.” Thus, the doctrine of enumerated powers became our principal defense against overweening government.

Only later, during the course of ratification, did it become necessary to add a Bill of Rights — as a secondary defense. But in so doing, the Framers were still faced with a pair of objections that had been posed from the start. First, it was impossible to enumerate all of our rights, which in principle are infinite in number. Second, given that problem, the enumeration of only certain rights would be construed, by ordinary methods of legal construction, as denying the existence of others. To overcome those objections, therefore, the Framers wrote the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Clearly, we cannot “retain” what we do not first have to be retained — the natural rights we were born with and did not give up when we authorized and instituted the government through ratification.

Constitutional Visions

Thus, with the Ninth Amendment making it clear that we have both enumerated and unenumerated rights, the Tenth Amendment making it clear that the federal government has only enumerated powers, and the Fourteenth Amendment later making our rights good against the states as well, what emerges is an altogether libertarian picture. Individuals, families, firms, and the infinite variety of institutions that constitute civil society are free to pursue happiness as they wish, in accord with whatever values they have, provided only that in the process they respect the equal rights of others to do the same; and governments are instituted to secure that liberty and do the few other things their constitutions make clear they are authorized and empowered by the people, through their constitutions, to do.

That picture is a far cry from the modern liberal’s vision, rooted in the Progressive Era, which would empower government to manage all manner of economic affairs. But it is a far cry as well from the modern conservative’s vision, which would empower government to manage a substantial range of personal affairs. Neither vision reflects the true constitutional scheme. Both camps want to use the Constitution to promote their own substantive agendas. Repeatedly, liberals invoke democratic power for ends that are nowhere authorized by our Constitution of limited powers; at other times they invoke “rights,” especially redistributive “rights,” that are no part of our unenumerated rights, requiring government programs that are nowhere authorized, while ignoring rights like property and freedom of contract that are plainly enumerated. But conservatives too rely largely on expansive readings of democratic power that were never envisioned, thereby running roughshod over rights that were meant to be protected, especially unenumerated rights.

From Liberty to Democracy

The great change in constitutional vision took place during the New Deal when the idea that galvanized the Progressive Era — that the basic purpose of government is to solve what are mainly personal problems — was finally instituted in law, not with an opinion here and there as had already been happening, but systematically through several Supreme Court decisions that, taken together, amounted to a radical reinterpretation of the Constitution, standing it on its head.

As noted earlier, following President Roosevelt’s 1937 Court‐​packing threat, the Court eviscerated our first line of defense, the doctrine of enumerated powers, with a pair of decisions that converted the shields contained in the General Welfare and Commerce Clauses into swords of power. Then, in 1938, a cowed Court undermined the second line of defense, our enumerated and unenumerated rights, when it declared that henceforth it would defer to the political branches and the states when their actions implicated “nonfundamental” rights like those associated with “ordinary commercial transactions” — property and contract rights, for example. Legislation implicating such rights would be given minimal scrutiny, the Court said in effect, which in practice amounted essentially to no scrutiny at all. By contrast, when legislation implicated “fundamental” rights like voting, speech, and, later, certain “personal” liberties, the Court would apply “strict scrutiny,” rendering most such acts unconstitutional. Finally, in 1943, the Court jettisoned the nondelegation doctrine, grounded in the first word of the Constitution after the Preamble: “All legislative powers herein granted shall be vested in a Congress.” That allowed Congress to delegate ever more of its legislative powers to the executive branch agencies it had been creating, which is where most of our law today is written in the form of regulations, rules, interpretations, and more, thus undermining a core constitutional principle, the separation of powers.

Through those decisions, the Constitution was transformed, without benefit of amendment, from a limited libertarian to an expansive majoritarian document. The floodgates were thus opened to majoritarian tyranny, which very quickly became special‐​interest tyranny, including “crony capitalism,” as public choice economic theory demonstrates should be expected. And that led in turn to claims from many quarters that rights were being violated by these programs. Thus, the Court, focusing now not on powers but on rights, would have to try to determine whether the rights being claimed were or were not “in” the Constitution — a question the Constitution had spoken to only indirectly, for the most part, through the now‐​discredited doctrine of enumerated powers. And if it found the rights in question, the Court would then have to determine whether they were “fundamental” rights, to be protected under “strict scrutiny,” or only “nonfundamental” rights, which would be ignored if there were some “rational basis” — some conceivable reason — for the legislation that implicated them. Where in the Constitution is this judicial methodology to be found? Nowhere. The Court invented it from whole cloth to make the world safe for the New Deal’s social engineering schemes.

Judicial “Activism” and “Restraint”

Thus, it is no accident that until very recently the modern debate focused on rights, not powers. With the doctrine of enumerated powers effectively dead and government’s powers essentially unlimited, the main issue left for the Court to decide, apart from structural and related issues, was whether there might be any rights that would restrain that power and whether those rights are or are not “fundamental.” In the post–New Deal era, both liberals and conservatives bought into this jurisprudence. As noted above, both camps believed that the Constitution gives a wide berth to democratic decisionmaking. Neither side any longer asked the first question, the fundamental constitutional question: Does Congress have authority to pursue this end? Instead, that authority was simply taken for granted. Congress takes a policy vote on whatever proposal is before it and leaves it to the courts to determine whether there are any “fundamental” rights that might restrict their power.

Modern liberals, addicted to government programs, urged the Court to be “restrained” in finding rights that might limit their redistributive and regulatory schemes, especially “second‐​class” rights like property and contract. At the same time, they asked the Court to be “active” in finding “rights” invented from whole cloth that served their political agenda.

But modern conservatives were often little better. Reacting to abuses by liberal judicial “activists,” most conservatives called for judicial “restraint” across the board. Thus, if liberal programs ran roughshod over the rights of individuals to use their property or freely contract, the remedy, conservatives often said, was not for the Court to invoke the doctrine of enumerated powers — that battle was lost during the New Deal — nor even to invoke the rights of property and contract that are plainly in the Constitution — that might encourage judicial activism — but to turn to the democratic process to overturn those programs. Oblivious to the fact that restraint in finding rights is tantamount to activism in finding powers, and ignoring the fact that it was the democratic process that gave us those programs in the first place, too many conservatives offered us a counsel of despair amounting to a denial of constitutional protection.

No one doubts that in recent decades the Court has discovered “rights” in the Constitution that are no part of either the enumerated or unenumerated rights that the document was meant to protect. But it is no answer to that problem to ask the Court to defer wholesale to the political branches, thereby encouraging it, by implication, to sanction unenumerated powers that are no part of the document either. Indeed, if the Tenth Amendment means anything, it means that there are no such powers. Again, if the Framers had wanted to establish a simple democracy, they could have. Instead, they established a limited, constitutional republic, a republic with islands of democratic power in a sea of liberty, not a sea of democratic power surrounding islands of liberty.

Thus, it is not the proper role of the Court to find rights that are no part of the enumerated or unenumerated rights meant to be protected by the Constitution, thereby frustrating authorized democratic decisions. But neither is it the proper role of the Court to refrain from determining if those democratic decisions are in fact authorized and, if they are, whether their implementation violates rights guaranteed by the Constitution, enumerated and unenumerated alike.

The role of the judge in our constitutional republic is thus profoundly important and often profoundly complex. “Activism” is no proper posture for a judge, but neither is “restraint.” Judges must apply the Constitution to cases or controversies before them, neither making it up nor ignoring it. They must be actively engaged with the document and, especially, with its underlying principles. In particular, they must appreciate keenly that the Constitution is a document of delegated, enumerated, and thus limited powers. That will get the judge started on the question of what rights are protected by the document; for again, where there is no power, there is a right, belonging either to the states or to the people. Indeed, we should hardly imagine that, before the addition of the Bill of Rights, the Constitution failed to protect most rights simply because most were not “in” the document. But reviving the doctrine of enumerated powers is only part of the task before the Court. Especially when assessing the character and scope of state police power — the basic power of government to secure our rights — judges and justices must have a deep understanding of the classical theory of rights that stands behind the Constitution if it is to be restored correctly.

Those are the two sides — powers and rights — that need to be examined in the course of Senate confirmation hearings for nominees for the courts of the United States. It is important to know a nominee’s “judicial philosophy,” to be sure. But it is more important still to know his or her philosophy of the Constitution, for in the end it is the Constitution that defines us as a nation.

If a nominee does not have a deep and thorough appreciation for the basic principles of the Constitution — for the doctrine of enumerated powers and for the classical theory of rights that underpins the Constitution — then his or her candidacy should be rejected. In recent years, Senate confirmation hearings have provided opportunities for constitutional debate throughout the nation. Those debates need to move from the ethereal and often arid realm of “constitutional law” to the real realm of the Constitution. They are extraordinary opportunities not simply for constitutional debate but for constitutional renewal.

Unfortunately, in recent Congresses, we have seen the debate move not from “constitutional law” to the Constitution but in the opposite direction — to raw politics. We have heard demands that judicial nominees pass “ideological litmus tests,” for example, as if judges in their work were supposed to reflect popular views of one sort or another. That is tantamount to asking judges not to apply the law, which is what judging is all about, but to make the law according to those values, whatever the actual law may require, and to commit to doing so during the judicial confirmation process no less. The duty of a judge under the Constitution is to decide cases according to the law, not according to whatever values or ideology may be in fashion. For that, the only ideology that matters is that of the Constitution.


America is a democracy only in the most fundamental sense of that idea: authority, or legitimate power, rests ultimately with the people, as manifested through the Constitution. Having authorized that power, the people have no more right thereafter to tyrannize each other through majoritarian acts than government itself has to tyrannize the people. When they constituted us as a nation by ratifying the Constitution and the amendments that have followed, our ancestors gave up only certain of their powers as enumerated in the document, leaving us otherwise free to live our lives as we wish. We have allowed those powers to expand beyond all moral and legal bounds — at the price of our liberty and our well‐​being. The time has come to start returning those powers to their proper bounds, to reclaim our liberty, and to enjoy the fruits that follow.

Suggested Readings

Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, MA: Belknap, 1967.

Barnett, Randy E. “The Ninth Amendment: It Means What It Says.” Texas Law Review 85 (2006).

—. Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. New York: Broadside Books, 2016.

—. Restoring the Lost Constitution: The Presumption of Liberty. Revised ed. Princeton, NJ: Princeton University Press, 2014.

—. The Structure of Liberty: Justice and the Rule of Law. New York: Oxford University Press, 1998.

Blackman, Josh, and Ilya Shapiro. “Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution of 2020, and Properly Extending the Right to Keep and Bear Arms to the States.” Georgetown Journal of Law and Public Policy 8 (2010).

Bolick, Clint. Grassroots Tyranny: The Limits of Federalism. Washington: Cato Institute, 1993.

Corwin, Edward S. The “Higher Law” Background of American Constitutional Law. Indianapolis: Liberty Fund, 2008.

Dorn, James A., and Henry G. Manne, eds. Economic Liberties and the Judiciary. Fairfax, VA: George Mason University Press, 1987.

Eastman, John C. “Restoring the ‘General’ to the General Welfare Clause.” Chapman Law Review 4 (2001).

Epstein, Richard A. The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge, MA: Harvard University Press, 2014.

—. Principles for a Free Society: Reconciling Individual Liberty with the Common Good. Reading, MA: Perseus Books, 1998.

—. “The Proper Scope of the Commerce Power.” Virginia Law Review 73 (1987).

—. Simple Rules for a Complex World. Cambridge, MA: Harvard University Press, 1995.

Ginsburg, Douglas H. “On Constitutionalism.” Cato Supreme Court Review, 2002–2003.

Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. New York: Mentor, 1961.

Lawson, Gary. “The Rise and Rise of the Administrative State.” Harvard Law Review 107 (1994).

Lawson, Gary, and Patricia B. Granger. “The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause.” Duke Law Journal 43 (1993).

Locke, John. “Second Treatise of Government.” In Two Treatises of Government, edited by Peter Laslett. New York: Mentor, 1965.

Miller, Geoffrey P. “The True Story of Carolene Products.” Supreme Court Review (1987).

Neily, Clark M. III. Terms of Engagement: How Courts Should Enforce the Constitution’s Promise of Limited Government. New York: Encounter Books, 2013.

Pilon, Roger. “Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles.” Notre Dame Law Review 68 (1993).

—. “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” Cato Institute Policy Analysis no. 446, August 8, 2002.

—. “The Purpose and Limits of Government.” Cato’s Letter, no. 13 (1999).

—. “The United States Constitution: From Limited Government to Leviathan.” American Institute for Economic Research Economic Education Bulletin 45 (2005).

Reinstein, Robert J. “Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment.” Temple Law Review 66 (1993).

Sandefur, Timothy. The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Washington: Cato Institute, 2014.

Shankman, Kimberly C., and Roger Pilon. “Reviving the Privileges or Immunities Clause to Redress the Balance among States, Individuals, and the Federal Government.” Cato Institute Policy Analysis no. 326, November 23, 1998.

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Sorenson, Leonard R. Madison on the “General Welfare” of America. Lanham, MD: Rowman & Littlefield, 1995.

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