Constitutional Limits on Government Again an Issue

September/​October 1995 • Policy Report

A long‐​time concern of the Cato Institute — the constitutionallimitation of the federal government’s power — has burst upon publicawareness for the first time in decades thanks to severaldevelopments in the nation’s capital. The primary locus of interestin the issue is the U.S. Supreme Court, where suddenly the limitsof federal power have once again become subject to intensedebate.

In April the Court ruled that Congress exceeded itsconstitutionally enumerated powers — in particular, the powergranted by the commerce clause — when it outlawed possession ofguns within 1,000 feet of schools (U.S. v. Lopez). Thatwas the first time in more than 60 years that the Courtacknowledged that there are limits to the commerce power. In hismajority opinion, Chief Justice William Rehnquist wrote, “Westart with first principles. The Constitution creates a FederalGovernment of enumerated powers.”

Associate Justice Clarence Thomas went even further in hisconcurring opinion in the five‐​to‐​four case. “If we wish tobe true to [the] Constitution … ‚” Thomas wrote,“our Commerce Clause’s boundaries simply cannot be ‘defined’as being ‘commensurate with the national needs’ or self‐ consciouslyintended to let the Federal Government ‘defend itself against economicforces that Congress decrees inimical or destructive of thenational economy.’ Such a formulation of federal power is no testat all: it is a blank check.”

Cato’s Center for Constitutional Studies had been arguing forjust such an interpretation in the Lopez case since it was acceptedby the Supreme Court. Reasoning very similar to Thomas’s is foundin the October 1994 Cato Policy Analysis (no. 216), “Kids,Guns, and the Commerce Clause: Is the Court Ready forConstitutional Government?” by Professor Glenn HarlanReynolds. Center director Roger Pilon discussed the ruling in aMay 21 Sunday Washington Post article, “It’s Not aboutGuns: The Court’s Lopez Decision Is Really about Limits onGovernment.”

The issue of enumerated federal powers next surfaced when theSupreme Court issued its much‐​awaited ruling on congressionalterm limits. Although the court ruled five to four that termlimits passed in the states are unconstitutional, Justice Thomas’sdissent contained arguments that will probably echo in thecapital for years to come. “Nothing in the Constitution deprivesthe people of each State of the power to prescribe eligibilityrequirements for the candidates who seek to represent them in Congress,“Thomas wrote. “The Constitution is simply silent on thisquestion. And where the Constitution is silent, it raises no barto action by the States or the people.” Again, that is theargument that Cato authors expounded in several papers and in thebook The Politics and Law of Term Limits.

In a page‐​one news analysis of the Court’s decisions, the NewYork Times stated, “The two events — what the Court accomplishedin the Lopez decision and what the dissenters nearly achieved [in theterm‐​limits case] — have together put into play for the first timein a half‐​century fundamental questions about the essentialnature of the Federal Government.” The Times alsoquoted Pilon.

Interest in the constitutional limits to federal power hasbecome formalized in the 104th Congress with the formation of the ConstitutionalCaucus. With nearly 100 members, the caucus, according to the letterof announcement signed by Rep. J. D. Hayworth (R-Ariz.),“will explore ways to return power to the states and thepeople and restore a limited, constitutional government. It willfocus on educating Congress and the public on the importance ofreturning the American government to ‘constitutionalism.’ ” Hayworth’sletter pointed out that “during this century, the federalgovernment has assumed a vast and unprecedented set of powers . .. [which] has eroded our personal liberties and freedom.”

When Hayworth gathered the freshman Republican House membersto build support for the caucus, he invited Pilon to address themeeting. Pilon was also invited to testify at a hearing onfederalism before the House Subcommittee on Human Resources andIntergovernmental Relations by chairman Christopher Shays(R-Conn.). Pilon told the subcommittee that “the federalismdebate is, without doubt, the most important political, legal,and constitutional debate taking place in America today, going toour very roots as a nation.” He advised the members that“the people and the states no longer trust Washington …because Washington has assumed a vast array of regulatory and redistributivepowers that were never its to assume — not, that is, if we takethe Constitution seriously.”

Cato will be working to keep the Constitution a front‐​burnerissue in Washington and throughout the United States.