Constitutional Limits on Government Again an Issue

A long-time concern of the Cato Institute — the constitutional limitation of the federal government's power — has burst upon public awareness for the first time in decades thanks to several developments in the nation's capital. The primary locus of interest in the issue is the U.S. Supreme Court, where suddenly the limits of federal power have once again become subject to intense debate.

In April the Court ruled that Congress exceeded its constitutionally enumerated powers — in particular, the power granted by the commerce clause — when it outlawed possession of guns within 1,000 feet of schools (U.S. v. Lopez). That was the first time in more than 60 years that the Court acknowledged that there are limits to the commerce power. In his majority opinion, Chief Justice William Rehnquist wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers."

Associate Justice Clarence Thomas went even further in his concurring opinion in the five-to-four case. "If we wish to be true to [the] Constitution ... ," Thomas wrote, "our Commerce Clause's boundaries simply cannot be 'defined' as being 'commensurate with the national needs' or self- consciously intended to let the Federal Government 'defend itself against economic forces that Congress decrees inimical or destructive of the national economy.' Such a formulation of federal power is no test at all: it is a blank check."

Cato's Center for Constitutional Studies had been arguing for just such an interpretation in the Lopez case since it was accepted by the Supreme Court. Reasoning very similar to Thomas's is found in the October 1994 Cato Policy Analysis (no. 216), "Kids, Guns, and the Commerce Clause: Is the Court Ready for Constitutional Government?" by Professor Glenn Harlan Reynolds. Center director Roger Pilon discussed the ruling in a May 21 Sunday Washington Post article, "It's Not about Guns: The Court's Lopez Decision Is Really about Limits on Government."

The issue of enumerated federal powers next surfaced when the Supreme Court issued its much-awaited ruling on congressional term limits. Although the court ruled five to four that term limits passed in the states are unconstitutional, Justice Thomas's dissent contained arguments that will probably echo in the capital for years to come. "Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress," Thomas wrote. "The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people." Again, that is the argument that Cato authors expounded in several papers and in the book The Politics and Law of Term Limits.

In a page-one news analysis of the Court's decisions, the New York Times stated, "The two events — what the Court accomplished in the Lopez decision and what the dissenters nearly achieved [in the term-limits case] — have together put into play for the first time in a half-century fundamental questions about the essential nature of the Federal Government." The Times also quoted Pilon.

Interest in the constitutional limits to federal power has become formalized in the 104th Congress with the formation of the Constitutional Caucus. With nearly 100 members, the caucus, according to the letter of announcement signed by Rep. J. D. Hayworth (R-Ariz.), "will explore ways to return power to the states and the people and restore a limited, constitutional government. It will focus on educating Congress and the public on the importance of returning the American government to 'constitutionalism.'" Hayworth's letter pointed out that "during this century, the federal government has assumed a vast and unprecedented set of powers . . . [which] has eroded our personal liberties and freedom."

When Hayworth gathered the freshman Republican House members to build support for the caucus, he invited Pilon to address the meeting. Pilon was also invited to testify at a hearing on federalism before the House Subcommittee on Human Resources and Intergovernmental Relations by chairman Christopher Shays (R-Conn.). Pilon told the subcommittee that "the federalism debate is, without doubt, the most important political, legal, and constitutional debate taking place in America today, going to our 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 redistributive powers that were never its to assume — not, that is, if we take the Constitution seriously."

Cato will be working to keep the Constitution a front-burner issue in Washington and throughout the United States.