Mr. Chairman, distinguished members of the subcommittee:
My name is Roger Pilon. I am vice president for legal affairs atthe Cato Institute and director of Cato's Center for ConstitutionalStudies. 1 I want to thankyou, Mr. Chairman, for inviting me to testify today on "Guns andButter: Setting Priorities in Federal Spending in the Context ofNatural Disasters, Deficits, and War"-the purpose of the hearingbeing, as your letter of invitation states, "to focus on the limitsand role of our federal government as outlined in theConstitution."
I can well understand your concern to focus on that issue, Mr.Chairman. In Federalist 45, James Madison, the principal author ofthe Constitution, spoke to a skeptical nation, worried that thedocument the Constitutional Convention had just drafted gave thecentral government too much power. Be assured, he said, the powersof the new government were, and I quote, "few and defined." Howthings have changed. Yet in its 218 years, the Constitution itselfhas changed very little. The questions before us, then, are (1)under that Constitution, how did we go from limited to essentiallyunlimited government, (2) what are the implications, and (3) whatshould be done about it?
A closely related question is whether Madison understood andcorrectly reported on the document he'd just drafted, or whethermodern interpretations of the Constitution, which have allowed ourmodern Leviathan to arise, are correct. Let me say here thatMadison was right; the modern interpretations are wrong. As acorollary, most of what the federal government is doing today isunconstitutional because done without constitutional authority.That contention will doubtless surprise many, but there you haveit. I mean to speak plainly in this testimony and call things bytheir proper name.
But before I defend that contention by addressing thosequestions, let me note that the nominal subject of thesehearings-"setting priorities in federal spending"-concerns mainly amatter of policy, not law. Unless some law otherwise addresses it,that is, how Congress prioritizes its spending is its and thepeople's business-a political matter. By contrast, the subtext ofthese hearings, which I gather is the subcommittee's principalconcern, is "the limits and role of our federal government asoutlined in the Constitution," and that is mainly a legal question.I distinguish those questions, let me be clear, for a veryimportant reason. It is because we live under a Constitution thatestablishes the rules for legitimacy. Thus, in the case at hand,Congress may have pressing policy reasons for prioritizing spendingin a given way, but such reasons are irrelevant to the question ofwhether that spending is constitutional.
Because that distinction and the underlying issue of legitimacyare so central to these hearings, they warrant further elaborationat the outset. In brief, our Constitution serves four mainfunctions: to authorize, institute, empower, and limit the federalgovernment. Ratification accomplished those ends, lending politicaland legal legitimacy to institutions and powers that purported byand large to be morally legitimate because grounded in reason.Taken together, the Preamble, the first sentence of Article I, theinherent structure of the document, and especially the TenthAmendment indicate that ours is a government of delegated,enumerated, and thus limited powers. The Constitution's theory oflegitimacy is thus simple and straightforward: To be legitimate, apower must first have been delegated by the people, as evidenced byits enumeration in the Constitution. That is the doctrine ofenumerated powers, the centerpiece of the Constitution. For theFramers, it was the main restraint against overweening government.In fact, the Bill of Rights, which we think of today as the mainrestraint, was an afterthought, added two years later for extraprecaution.
Once that fundamental principle is grasped, a second follows:Federal powers can be expanded only by constitutional amendment,not by transient electoral or congressional majorities. Over theyears, however, few such amendments have been added. In the main,therefore, Article I, section 8 enumerates the 18 basic powers ofCongress-the power to tax, the power to borrow, the power toregulate commerce with foreign nations and among the states, and soforth, concluding with the power to enact such laws as may benecessary and proper for executing the government's otherenumerated powers. It is a short list, the idea being, as the TenthAmendment makes explicit and the Federalist explains, thatmost power is to remain with the states-or with the people, neverhaving been delegated to either level of government. 2
In fact, given the paucity and character of the federalgovernment's enumerated powers, it is plain that the Framers meantfor most of life to be lived in the private sector-beyond the reachof politics, yet under the rule of law-with governments at alllevels doing only what they have been authorized to do. Far fromauthorizing the ubiquitous government planning and programs we havetoday, the Constitution allows only limited government, dedicatedprimarily to securing the conditions of liberty that enable peopleto plan and live their own lives. I turn, then, to the first of thequestions set forth above: How did we move from a Constitution thatlimited government to one that is read today to authorizeeffectively unlimited government?
From Limited to Unlimited Government
The great constitutional change took place in 1937 and 1938,during the New Deal, all without benefit of constitutionalamendment; but the seeds for that change had been sown well beforethat, during the Progressive Era. 3 Before examining that transition, however, I wantto lay a proper foundation by sketching briefly how earliergenerations had largely resisted the inevitable pressures to expandgovernment. It is an inspiring story, told best, I have found, in athin volume written in 1932 by Professor Charles Warren of theHarvard Law School. Aptly titled, Congress as Santa Claus: orNational Donations and the General Welfare Clause of theConstitution, this little book documents our slow slide fromliberty and limited government to the welfare state-and that was1932! In truth, however, Warren's despair over that slidenotwithstanding, the book is a wonderful account of just how longwe lived under the original design, for the most part, beforethings started to fall apart during the Progressive Era. And so Iwill share with the subcommittee just a few snippets and themesfrom the book, along with material from other sources, to conveysomething of a sense of how things have changed-not only in the lawbut, more important, in the culture, in our attitude toward thelaw.
When Thomas Jefferson wrote that it was the natural tendency forgovernment to grow and liberty to yield, he doubtless had in mindhis rival, Alexander Hamilton, for hardly had the new governmentbegun to operate when Hamilton proposed a national industrialpolicy in his 1791 Report on Manufactures. 4 To Hamilton's argument that Congress hadthe power to pronounce upon the objects that concern the generalwelfare and that these objects extended to "the general interestsof learning, of agriculture, of manufacturing, and of commerce,"5 Madison responded sharplythat "the federal Government has been hitherto limited to thespecified powers, by the Greatest Champions for Latitude inexpounding those powers. If not only the means, but theobjects are unlimited, the parchment had better be throwninto the fire at once." 6Congress shelved Hamilton's Report. He lost that battle,but over time he won the war.
The early years saw numerous attempts to expand government'spowers, but the resistance mostly held. In 1794, for example, abill was introduced in the House to appropriate $15,000 for therelief of French refugees who had fled to Baltimore andPhiladelphia from an insurrection in San Domingo, 7 whereupon Madison rose on the floor to saythat he could not "undertake to lay [his] finger on that article ofthe Federal Constitution which granted a right to Congress ofexpending, on objects of benevolence, the money of theirconstituents." 8 Two yearslater a similar bill, for relief of Savannah fire victims, wasdefeated decisively, a majority in Congress finding that theGeneral Welfare Clause afforded no authority for so particular anappropriation. 9 AsVirginia's William B. Giles observed, "[The House] should notattend to what... generosity and humanity required, but what theConstitution and their duty required." 10
Those early attempts to expand Congress's power, and theresistance to them, centered on the so-called General WelfareClause of the Constitution, found in the first of Congress's 18enumerated powers. 11Hamilton argued that the clause authorized Congress to tax andspend for the general welfare. Not so, said Madison, Jefferson, andmany others. South Carolina's William Drayton put it best in1828:
If Congress can determine what constitutes the GeneralWelfare and can appropriate money for its advancement, where is thelimitation to carrying into execution whatever can be effected bymoney? How few objects are there which money cannot accomplish!...Can it be conceived that the great and wise men who devised ourConstitution... should have failed so egregiously... as to grant apower which rendered restriction upon power practically unavailing?12
Stated differently-with reference to constitutionalstructure-what was the point of enumerating Congress's powers ifany time it wanted to do something it was not authorized to do,because there was no power granted to do it, Congress could simplysay it was spending for the "general welfare" and thus make anend-run around the limits imposed by the doctrine of enumeratedpowers? Enumeration would have been pointless.
That argument largely held through the course of the 19thcentury. To be sure, inroads on limited government were made onother constitutional grounds, as Warren recounts. Congress madegifts of land held in trust under the Public Lands Clause, forexample, with dubious consideration given in return; then gifts ofrevenues from the sale of such lands; and finally, gifts of taxrevenues generally. 13 Butthere were also numerous examples of resistance to suchredistributive schemes. Thus, in 1887, 100 years after theConstitution was written, President Grover Cleveland vetoed a billappropriating $10,000 for distribution of seeds to Texas farmerssuffering from a drought. 14 In his veto message he put it plainly: "I canfind no warrant for such an appropriation in the Constitution."15 Congress sustained theveto. And as late as 1907 we find the Supreme Court expresslyupholding the doctrine of enumerated powers in Kansas v.Colorado:
The proposition that there are legislative powersaffecting the Nation as a whole which belong to, although notexpressed in [,] the grant of powers, is in direct conflict withthe doctrine that this is a government of enumerated powers.… The natural construction of the original body of theConstitution is made absolutely certain by the Tenth Amendment.16
Thus, although the doctrine of enumerated powers faced politicalpressure from the start, and increasing pressure as time went on,the pattern we see through our first 150 years under theConstitution can be summed up as follows. In the early years,measures to expand government's powers beyond those enumerated inthe Constitution rarely got out of Congress because they werestopped by objections in that branch-constitutionalobjections. Members of Congress actually debated whether they hadthe power to do whatever it was that was being proposed; theydidn't simply assume they had the power and then leave it to thecourts to check them. Congress took the Constitution and thelimits it imposed on congressional action seriously.17 Then whenconstitutionally dubious bills did get out of Congress, presidentsvetoed them-not simply on policy but on constitutional grounds. Andfinally, when that brake failed, the Court stepped in. In short,the system of checks and balances worked because the Constitutionwas taken seriously by sufficient numbers of those who had sworn touphold it.
The Progressive Era called all of that into question. Marked bya fundamental change in the climate of ideas, it paved the way forthe New Deal. In fact, as early as 1900 we could find TheNation, before it became an instrument of the modern left,lamenting the demise of classical liberalism. In an editorialentitled "The Eclipse of Liberalism," the magazine's editorssurveyed the European scene, then wrote that in America, too,"recent events show how much ground has been lost. The Declarationof Independence no longer arouses enthusiasm; it is an embarrassinginstrument which requires to be explained away. The Constitution issaid to be 'outgrown.'" 18
The Progressives to whom those editors were pointing,sequestered often in elite universities of the East, were animatedby ideas from abroad: British utilitarianism, which had supplantedthe natural rights theory on which the Constitution rested; Germantheories about good government, as reflected in Chancellor Otto vonBismarck's social security experiment; plus our own homegrowntheories about democracy and pragmatism. 19 Combined with the emerging social sciences,those forces constituted a heady brew that nourished grand ideasabout the role government could play in improving the humancondition. No longer viewing government as a necessary evil, as theFounders had, Progressives saw the state as an engine of good, aninstrument through which to solve all manner of social and economicproblems. In a word, it was to be better living through biggergovernment. 20
But a serious obstacle confronted the political activists of theProgressive Era-that troublesome Constitution and the willingnessof judges to enforce it. Dedicated to liberty and limitedgovernment, and hostile to government planning garbed even in "thepublic good," the Constitution stood as a bulwark againstoverweening government, much as the Framers intended it would. Notalways, 21 to be sure, butfor the most part.
With the onset of the New Deal, however, Progressives shiftedthe focus of their activism from the state to the federal level.But they fared little better there as the Court found several ofPresident Franklin Roosevelt's schemes unconstitutional, holdingthat Congress had no authority to enact them. 22 Not surprisingly, that prompted intensedebate within the administration over how to deal with "the nineold men." It ended early in 1937, following the landslide electionof 1936, when Roosevelt unveiled his infamous Court-packingscheme-his plan to pack the Court with six new members. Thereaction in the country was immediate. Not even the overwhelminglyDemocratic Congress-nearly four to one in the House-would go alongwith the scheme. Nevertheless, the Court got the message. Therefollowed the famous "switch in time that saved nine" and the Courtbegan rewriting the Constitution-again, without benefit ofconstitutional amendment.
It did so in two main steps. In 1937 the Court eviscerated thedoctrine of enumerated powers. Then in 1938 it bifurcated the Billof Rights and invented a bifurcated theory of judicial review. Forthe purpose of these hearings, it is one half of the 1937 step thatis most important, the rewriting of the General Welfare Clause; butthe rest merits a brief discussion as well, to give a more completepicture of this constitutional revolution.
In 1936, in United States v. Butler, 23 the Court had found the AgriculturalAdjustment Act 24unconstitutional. But in the course of doing so it opined on thegreat debate between Madison and Hamilton over the meaning of theso-called General Welfare Clause, coming down on Hamilton'sside-yet only in dicta and hence not as law. A year later, however,following the Court-packing threat, the Court elevated that dictaas it upheld the Social Security Act 25 in Helvering v. Davis. 26 The words were ringing: "Congress mayspend money in aid of the 'general welfare,'" 27 said the 1937 Court. Moreover, "theconcept of the general welfare [is not] static. Needs that werenarrow or parochial a century ago may be interwoven in our day withthe well-being of the nation." 28 Thus were the floodgates opened. The modernwelfare state was unleashed.
But if Congress could now engage in unbounded redistribution, sotoo could it regulate at will following the Court's decision thatsame year in NLRB v. Jones & Laughlin Steel Corp.29 The issue there was thescope of Congress's power to regulate interstate commerce, a powerCongress had been granted to address the impediments to interstatecommerce that had arisen under the Articles of Confederation asstates were imposing tariffs and other measures to protect localmerchants and manufacturers from out-of-state competition. Thus,the power was meant mainly to enable Congress to ensure the freeflow of goods and services among the states-to make that commerce"regular," as against state and other efforts to impede it.30 It was not a power toregulate anything for any reason. Yet that, in effect, is what itbecame as the 1937 Jones & Laughlin Court held thatCongress had the power to regulate anything that "affected"interstate commerce, which is virtually everything.
The doctrine of enumerated powers now effectivelyeviscerated-the floodgates open for the modern redistributive andregulatory state to pour through-only the Bill of Rights stoodathwart that unbounded power. So in 1938, in famous footnote 4 ofUnited States v. Carolene Products, 31 the Court addressed that impediment toLeviathan by distinguishing "fundamental" and "nonfundamental"rights, in effect, and inventing a bifurcated theory of judicialreview to complement that distinction. If a law implicated"fundamental" rights like speech or voting, the Court would apply"strict scrutiny" and would doubtless find it unconstitutional. Bycontrast, if a law implicated "nonfundamental" rights likeproperty, contract, or the rights we exercise in ordinarycommercial relations, the Court would uphold the law as long asthere was some "rational basis" for it. 32 That judicial deference to the politicalbranches regarding economic rights, coupled with strict scrutinyfor political rights, amounted to the democratization and to thepoliticization of the Constitution, to opening the door topolitical control of economic affairs, public and private alike,beyond anything the Framers could have imagined. 33
The rest is history, as we say, with redistributive andregulatory schemes, federal, state, and local, pouring forth.Others on this panel can testify as to the numbers that illustratethat explosion in government programs. My concern, rather, is tooutline how it happened that under a Constitution meant to limitgovernment we got a government of effectively unlimited power.
Toward that end, and beyond the history of the matter, let meadd that most of the spending that is the focus of these hearingshas arisen under the so-called General Welfare Clause, which theCourt has also referred to as the Spending Clause. In truth,however, there are no such clauses in the Constitution,34 which is why I haveinvoked the term "so-called." A careful reading of the first ofCongress's 18 enumerated powers, which is the nominal source ofthose so-called clauses, coupled with reflection on the structureof the document, will reveal merely a power to tax at the head ofArticle I, section 8, much as the second of Congress's enumeratedpowers is the power to borrow. If Congress exercises either or bothof those powers-or its Article IV power to "dispose" of publiclands, for that matter-and it wants then to appropriate and spendthe proceeds on any of the ends that are authorized to it, it mustdo so under the Necessary and Proper Clause. For taxing, borrowing,disposing, appropriating, and spending are distinct powers. Thefirst three are expressly authorized to Congress. Appropriating andspending, by contrast, are necessary and proper meanstoward executing the powers authorized to the government-meansprovided for under the Necessary and Proper Clause. As such, theyare not independent but only instrumental powers,exercised in service of ends that in turn limit their use tothose ends. Put simply, Congress cannot appropriate and spendfor any end it wishes, but only for those ends it is authorized topursue-and they are, as Madison said, "few and defined."
We come, then, to the nub of the matter. Search the Constitutionas you will, you will find no authority for Congress to appropriateand spend federal funds on education, agriculture, disaster relief,retirement programs, housing, health care, day care, the arts,public broadcasting-the list is endless. That is what I meant atthe outset when I said that most of what the federal government isdoing today is unconstitutional because done without constitutionalauthority. Reducing that point to its essence, the Constitutionsays, in effect, that everything that is not authorized-to thegovernment, by the people, through the Constitution-is forbidden.Progressives turned that on its head: Everything that is notforbidden is authorized.
But don't take my word for it. Take the word of those whoengineered the constitutional revolution. Here is PresidentRoosevelt, writing to the chairman of the House Ways and MeansCommittee in 1935: "I hope your committee will not permit doubts asto constitutionality, however reasonable, to block the suggestedlegislation." 35 And hereis Rexford Tugwell, one of the principal architects of the NewDeal, reflecting on his handiwork some thirty years later: "To theextent that these new social virtues [i.e., New Deal policies]developed, they were tortured interpretations of a document [i.e.,the Constitution] intended to prevent them." 36 They knew exactly what they weredoing-turning the Constitution on its head. That is the legacy welive with today.
Implications of the ConstitutionalRevolution
That legacy has many implications. Let me distinguish five.First, and perhaps most important, is the loss of legitimacy-moral,political, and legal. Today, we tend to think mainly of politicallegitimacy, failing to see how the several grounds of legitimacy gotogether. We imagine that the people, by their periodic votes, tellthe government what they want; and to the extent that it respondsto that expression of political will, consistent with certain stateimmunities and individual rights that might check it, thegovernment and its actions are legitimate. Whatever morallegitimacy flows from that view is a function of the moral right ofself-government, but that right is largely open-ended regarding thearrangements it might produce. It could produce limited government.But it could as easily produce unlimited government. 37 And without a keen sense of the roleand place of moral legitimacy, we are indifferent as to which itis.
That view characterizes legitimacy in a parliamentary system,more or less; it is not how legitimacy operates in ourconstitutional republic. Rather, as shown by the Declaration ofIndependence, the main principles of which shaped the Constitution,we find our roots in Lockean state-of-nature theory and itsunderlying theory of natural rights. 38 Legitimacy is first defined by the moral order,by the rights and obligations we have with respect to each other.Only then do we turn to political and legal legitimacy, through thesocial contract-the Constitution-that facilitates and reflects it.As outlined earlier, the federal government gets its powers bydelegation from the people through ratification-reflecting mainlythe (natural) powers the people have to give it-not throughsubsequent elections, which are designed primarily to fill electiveoffices. To be sure, many of the powers thus delegated leave roomfor discretion by those elected. That is why elections matter:different candidates may have different views on the exercise ofthat discretion-the discretion to declare war, to take a clearexample. But through elections the people can no more givegovernment a power it does not have than they can take fromindividuals a right they do have. In a constitutional republic likeours, it is the Constitution that sets the powers, not the peoplethrough periodic elections.
But when powers or rights are expanded or contracted not throughratification but through elections and the subsequent actions ofelected officials, and the courts fail to check that, theConstitution is undermined and the powers thus created areillegitimate. That happened when the New Deal Court bowed to thepolitical pressure brought on by Roosevelt's Court-packing threat.And that paved the way for powers that have never beenconstitutionally authorized by the people-for illegitimatepowers, that is-and for the accompanying loss of rights.
Some would argue that we could correct that problem ofillegitimacy simply by putting our present arrangements to a votethrough the supermajoritarian amendment and ratification proceduresprovided for in Article V. Were that vote successful, that wouldindeed produce political and legal legitimacy. But because theConstitution as it stands today reflects fairly closely, in myjudgment, the moral order that can be justified-in other words, theFramers and those who subsequently amended the document got itright, for the most part-I would object to amending theConstitution simply to lend political and legal legitimacy to themodern welfare state. Better, I believe, to be able to point notsimply to that state's moral illegitimacy but to its political andlegal illegitimacy as well.
The second untoward implication of our departure from theConstitution is the chaos that follows for law more generally.39 The judicial methodologythe Constitution contemplates for most constitutional questions isreally quite simple. Assuming a court has jurisdiction in a casechallenging a given federal statute, the first question is whetherCongress had authority to enact the statute. If not, that ends thematter. If yes, the next question is whether and how the act mayimplicate rights, enumerated or unenumerated.
Those questions are not always easy to answer and often involveclose calls. But the difficulties are multiplied exponentially whenthe floodgates are opened and federal, state, and local legislationpours through, producing often inconsistent and incoherent "law"from every direction. Add to that, as noted above, the tendentiousand politicized judicial methodology that flowed from CaroleneProducts-today we have three and sometimes four "levels" ofjudicial review, 40 eachwith its own standards, and multi-factored "balancing" tests-and itsoon becomes clear that we are far removed from a Constitution thatwas written to be understood at least by the educated layman. Lifeis complicated enough on its own terms. When government intrudes invirtually every corner of life, the complications can easily becomeoverwhelming and unbearable. The Constitution was meant to bringorder. If under it "anything goes," order goes too, and chaosfollows.
Closely related to those two implications is a third: disrespectfor the Constitution entails disrespect for the rule of law itself.If Congress can redistribute and regulate virtually at will,unrestrained by the limits the Constitution imposes, the rule oflaw is at risk. By definition, unauthorized powers intrude onrights retained by the people; but a cavalier attitude towardpowers can lead more directly to the same attitude toward rights:if powers can be expanded with impunity, so too can rights becontracted. 41 In fact, a"living constitution," interpreted to maximize politicaldiscretion, can be worse than no constitution at all, because itpreserves the patina of constitutional legitimacy while unleashingthe political forces that a constitution is meant to restrain. Andhow long can "anything goes" for officials go unnoticed by thecitizenry? A general decline in respect for law must follow.
Fourth, when constitutional integrity declines we lose thediscipline a constitution is designed to impose on government. Aconstitution makes it harder for government to act, which is one ofthe main reasons for having one. This implication speaks to one ofthe basic functions of a constitution, which is not only to empowerbut to limit the government that is created through it. Inthe original position, when we created and ratified theConstitution, we agreed to limit the government's power as an actof self-discipline. We could have set no limits on the government'spower, of course; but that would have left us to a futuredetermined by the political winds, and experience had taught us theperils of that course. Thus, we struck what we thought was acareful balance, giving the government enough power to do what wethought it should do, but reserving to ourselves the libertyappropriate to a free people. With that balance struck, theConstitution would serve to discipline us and future generationswho might be tempted, given the circumstances, to grant thegovernment more power than, in our considered judgment, we thoughtprudent.
Future generations could adjust that balance, of course, byamending the Constitution, provided sufficient numbers among themwanted to do so. In fact, that is just what happened following theCivil War. Troubled as the Framers were about the institution ofslavery, which they recognized only obliquely in the Constitutionto ensure union, they left its regulation to the states. After theCivil War, however, a new generation not only abolished slaverybut, through the Fourteenth Amendment, fundamentally changed thebalance between the federal government and the states. With theratification of that amendment we finally had federal remediesagainst state violations of our rights. 42 Thus, although the amendment is properly readas having expanded federal power, it was done todiscipline state power. A new balance was struck, to besure, but because it was done through the constitutional process itdid not amount to abandoning the discipline a constitution imposes,which is what happens when we stray from the document's principles.In fact, the contrast between the different ways in which the CivilWar and the New Deal generations changed the rules is stark andinstructive. The Civil War generation did it the right way-throughthe ratification process. The New Deal generation, faced with achoice between amending the Constitution and changing it byjudicial legerdemain, chose the latter.
But the larger picture regarding discipline should not be lost.For just as the Constitution disciplines the government, so too itdisciplines the people in their daily lives. Professor Warrencaptures that point nicely with a quote from South Carolina'sWarren R. Davis, speaking in the House on April 4, 1832:
This system of transferring property by legislation-ofgiving pensions and gratuities to individuals, companies,corporations, and the States- … will degrade the States byinducing them to look for bounties, to the Federal Government; willdegrade and demoralize the people, by making them dependent on theGovernment; will emasculate the free spirit of the country…. As soon as the people of ancient Rome were taught to lookto the public granaries for support, the decay of public virtue wasinstantaneous. 43
Vast numbers of Americans today look to Washington for a richarray of "entitlements" that speak of nothing so much as theillusion of something for nothing. And politicians nurture thatillusion, propelling us all in the downward spiral that ThomasHobbes aptly called a war of all against all. Stated otherwise, ascontributors to public largesse become fewer and recipients morenumerous, the downward spiral becomes a death spiral. And we areheaded in that direction as discipline continues to erode.
Finally, and closely related, let me little more than mentionthe economic implications of effectively unlimited government as Iexpect that others on the panel will address those more fully. Bythis point in human history, and especially after the collapse ofthe socialist experiments of the 20th century, we have a fairlyclear understanding of the connection between liberty andprosperity-a connection that Adam Smith articulated so well in1776, 44 and economistslike Mises, Hayek, and Friedman, among many others, have refinedand extended in our own time. What that understanding points to,once again, is the prescience of the Framers in drafting aconstitution dedicated to securing our liberty and hence ourextraordinary prosperity. But neither liberty nor prosperity isguaranteed by a mere parchment, especially by one that is ignored.The American economy has proven resilient enough to withstand theblows imposed by the galloping government of the 20thcentury-although we will never know how much more prosperous wemight have been had that government been better reined. In future,however, to the extent we ignore the lessons of economics we invitethe consequences that have befallen so many other nations that havechosen economic planning over economic liberty. And the basiclesson of economics is that liberty, property, and contract are thefundamental preconditions of prosperity.
What Is to Be Done?
We did not create our overextended, unconstitutional governmentovernight. We cannot restore constitutional governmentovernight-too many people have come to rely on the irresponsiblepromises that have been made. But we can begin the process ofrestoration. For that, the most important thing to do now is tostart restoring a constitutional ethos in the nation. And thatshould be the business of all branches, not simply the Court, whichcan hardly do the job by itself, even if it were the right body todo so. What we have here, in short, is not simply or even mainly alegal problem. Rather, it is a political and, more deeply still, amoral problem.
Because I have discussed what needs to be done in some detail inchapter 3 of the Cato Handbook on Policy, 45 copies of which are available inevery congressional office, I will simply outline those proposalshere.
Limits on government today, when we've had them, have comelargely from political and budgetary rather than fromconstitutional considerations. It has not been because of anyperceived lack of constitutional authority that government inrecent years has failed to undertake a program but because ofpractical limits on the power of government to tax and borrow-andeven those limits have failed in times of economic prosperity. Torestore truly limited government, therefore, we have to do morethan define the issues as political or budgetary. We have to go tothe heart of the matter and raise the underlying constitutionalquestions. In a word, we have to ask the most fundamental questionof all: Does the government have the authority, the constitutionalauthority, to do what it is doing?
That means, of course, that we are going to have to come togrips with the present state of public debate on the subject. Itsurely counts for something that a substantial number ofAmericans-to say nothing of the organs of public opinion-havelittle apprehension of or appreciation for the Constitution'slimits on activist government. Thus, when thinking about how andhow fast to reduce government, we have to recognize that the Court,after nearly 70 years of arguing otherwise, is hardly in aposition, by itself, to relimit government in the far-reaching waya properly applied Constitution requires. But neither does Congressat this point have sufficient moral authority, even if it wantedto, to end tomorrow the vast array of programs it has enacted overthe years with insufficient constitutional authority.
For either Congress or the Court to be able to do fully whatshould be done, therefore, a proper foundation must first be laid.In essence, the climate of opinion must be such that a sufficientlylarge portion of the American public stands behind the changes thatare undertaken. When enough people come forward to ask-indeed, todemand-that government limit itself to the powers it is given inthe Constitution, thereby freeing individuals, families, andcommunities to solve their own problems, we will know we are on theright track.
Fortunately, a change in the climate of opinion on such basicquestions has been under way for some time now. The debate today isvery different than it was in the 1960s and 1970s. But there is agood deal more to be done before Congress and the courts are ableto move in the right direction in any far-reaching way.
To continue the process, Congress should take the lead byengaging in constitutional debate in Congress, much as happened inthe 19th century, thereby encouraging constitutional debate in thenation. That was urged by the House Constitutional Caucus duringthe 104th Congress. Under the leadership of House freshmen like J.D. Hayworth and John Shadegg of Arizona, Sam Brownback of Kansas,and Bob Barr of Georgia, together with a few more seniorcongressmen like Richard Pombo of California, an informalConstitutional Caucus was established in the "radical" 104thCongress. Unfortunately, the caucus has been moribund since then.It needs to be revived-along with the spirit of the 104thCongress-and its work needs to be expanded.
By itself, of course, neither the caucus nor the entire Congresscan solve the problem before us. To be sure, in a reversal of allhuman experience, Congress in a day could agree to limit itself toits enumerated powers and then roll back the countless programs ithas enacted by exceeding that authority. But it would takeauthoritative opinions from the Supreme Court, reversing asubstantial body of largely post-New Deal decisions, to embed thoserestraints in "constitutional law"-even if they have been embeddedin the Constitution from the outset, the Court's modern readings ofthe document notwithstanding.
The ultimate goal of the caucus and Congress, then, should be toencourage the Court to reach such decisions. But history teaches,as noted above, that the Court does not operate entirely in avacuum-that to some degree public opinion is the precursor andseedbed of its decisions. Thus, the more immediate goal of thecaucus should be to influence the debate in the nation byinfluencing the debate in Congress. To do that, it is not necessaryor even desirable, in the present climate, that every member ofCongress be a member of the caucus-however worthy that end mightultimately be-but it is necessary that those who join the caucus becommitted to its basic ends. And it is necessary that membersestablish a clear agenda for reaching those ends.
To reduce the problem to its essence, every day members ofCongress are besieged by requests to enact countless measures tosolve endless problems. Indeed, one imagines that no problem is toopersonal or too trivial not to warrant federal attention,no less. Yet most of the "problems" Congress spends most of itstime addressing-from health care to day care to retirement securityto economic competition-are simply the personal and economicproblems of life that individuals, families, and firms, notgovernments, should be addressing-quite apart from the absence ofconstitutional authority to address them.
Properly understood and used, then, the Constitution can be avaluable ally in the efforts of the caucus and Congress to reducethe size and scope of government. For in the minds and hearts ofmost Americans, it remains a revered document, however little itmay be understood by a substantial number of them.
If the Constitution is to be thus used, however, the principalmisunderstanding that surrounds it must be recognized andaddressed. In particular, the modern idea that the Constitution,without further amendment, is an infinitely elastic document thatallows government to grow to meet public demands of whatever kindmust be challenged. More Americans than presently do must come toappreciate that the Framers, who were keenly aware of the expansivetendencies of government, wrote the Constitution precisely to checkthat kind of thinking and that possibility. To be sure, they meantfor government to be our servant, not our master, but they meant itto serve us in a very limited way-by securing our rights, as theDeclaration of Independence says, and by doing those few otherthings that government does best, as spelled out in theConstitution.
In all else, as discussed above, we were meant to be free-toplan and live our own lives, to solve our own problems, which iswhat freedom is all about. Some may characterize that vision astantamount to saying, "You're on your own," but that kind ofresponse simply misses the point. In America individuals, families,and organizations have never been "on their own" in the mostimportant sense. They have always been members of communities, ofcivil society, where they could live their lives and solve theirproblems by following a few simple rules about individualinitiative and responsibility, respect for property and promise,and charity toward the few who need help from others. Massivegovernment planning and programs have upset that natural order ofthings-less so in America than elsewhere, but very deeply all thesame.
Those are the issues that need to be discussed, both in humanand in constitutional terms. We need, as a people, to rethink ourrelationship to government. We need to ask not what government cando for us but what we can do for ourselves and, where necessary,for others-not through government but apart from government, asprivate citizens and organizations. That is what the Constitutionwas written to enable. It empowers government in a very limitedway. It empowers people-by leaving them free-in every otherway.
To proclaim and eventually secure that vision of a free people,the Constitutional Caucus should reconstitute itself and rededicateitself to that end in the 109th Congress and at the beginning ofevery Congress hereafter. Standing apart from Congress, the caucusshould nonetheless be both of and above Congress-as theconstitutional conscience of Congress. Every member of Congress,before taking office, swears to support the Constitution-hardly aconstraining oath, given the modern Court's open-ended reading ofthe document. Members of the caucus should dedicate themselves tothe deeper meaning of that oath. They should support theConstitution the Framers gave us, as amended by subsequentgenerations, not as "amended" by the Court's expansiveinterpretations.
Acting together, the members of the caucus could have a majorimpact on the course of public debate in this nation-not least, byvirtue of their numbers. What is more, there is political safety inthose numbers. As Benjamin Franklin might have said, no singlemember of Congress is likely to be able to undertake the task ofrestoring constitutional government on his own, for in the presentclimate he would surely be hanged, politically, for doing so. Butif the caucus hangs together, the task will be made more bearableand enjoyable-and a propitious outcome made more likely.
On the agenda of the caucus, then, should be those specificundertakings that will best stir debate and thereby move theclimate of opinion. Drawn together by shared understandings, andunrestrained by the need for serious compromise, the members of thecaucus are free to chart a principled course and employ principledmeans, which they should do.
They might begin, for example, by surveying opportunities forconstitutional debate in Congress, then making plans to seize thoseopportunities. Clearly, when new bills are introduced, or old onesare up for reauthorization, an opportunity is presented to debateconstitutional questions. But even before that, when plans arediscussed in party sessions, members should raise constitutionalissues. Again, the caucus might study the costs and benefits ofeliminating clearly unconstitutional programs, the better todetermine which can be eliminated most easily and quickly.
Above all, the caucus should look for strategic opportunities toemploy constitutional arguments. Too often, members of Congressfail to appreciate that if they take a principled stand against aseemingly popular program-and state their case well-they can seizethe moral high ground and prevail ultimately over those who areseen in the end to be more politically craven.
All of that will stir constitutional debate-which is just thepoint. For too long in Congress that debate has been dead, replacedby the often dreary budget debate. This nation was not establishedby men with green eyeshades. It was established by men whounderstood the basic character of government and the basic right tobe free. That debate needs to be revived. It needs to be heard notsimply in the courts-where it is twisted through modern"constitutional law"-but in Congress as well.
Before concluding, Mr. Chairman, let me leave the subcommitteewith three basic recommendations, which I have discussed more fullyin the Cato Handbook I referenced above:
- Enact nothing without first consulting the Constitution forproper authority and then debating that question on the floors ofthe House and the Senate.
- Move toward restoring constitutional government by carefullyreturning power wrongly taken over the years from the states andthe people.
- Reject the nomination of judicial candidates who do notappreciate that the Constitution is a document of delegated,enumerated, and thus limited powers.
America is a democracy in the most fundamental sense of thatidea: authority, or legitimate power, rests ultimately with thepeople. But the people have no more right to tyrannize each otherthrough democratic government than government itself has totyrannize the people. When they constituted us as a nation byratifying the Constitution and the amendments that have followed,our forefathers gave up only certain of their powers, enumeratingthem in a written constitution. We have allowed those powers toexpand beyond all moral and legal bounds-at the price of ourliberty and our well-being. The time has come to return thosepowers to their proper bounds, to reclaim our liberty, and to enjoythe fruits that follow.
BIOGRAPHICAL SKETCH OF ROGER PILON
Roger Pilon is vice presidentfor legal affairs at the Cato Institute where he holds the B.Kenneth Simon Chair in Constitutional Studies and directs Cato'sCenter for Constitutional Studies, which he founded in 1989. Priorto joining Cato he held five senior posts in the ReaganAdministration, at the Office of Personnel Management, the StateDepartment, and the Justice Department. A philosopher of law byprofession, Mr. Pilon did his undergraduate work at ColumbiaUniversity, earning a B.A. in philosophy in 1971. He did hisgraduate work at the University of Chicago, earning an M.A. in 1972and a Ph.D. in 1979, both in philosophy. In 1988 he earned a J.D.from the George Washington University School of Law. He taughtphilosophy at the California State University at Sonoma in 1977 andphilosophy of law at the Emory University School of Law from 1978to 1979. From 1979 to 1980 he was a national fellow at the HooverInstitution on War, Revolution and Peace at Stanford University andfrom 1980 to 1981 an Institute for Educational Affairs fellow atthe Institute for Humane Studies in Menlo Park, California. Mr.Pilon has published and lectured widely in the area of moral,political, and legal theory. He testifies often before Congress andis a frequent guest on television and radio programs discussinglegal issues of the day. In 1989 the National Press Foundation andthe Commission on the Bicentennial of the U.S. Con¬stitutionpresented him with the Benjamin Franklin Award for excellence inwriting on the U.S. Constitution. In 2001 Columbia University'sSchool of General Studies awarded him its Alumni Medal ofDistinction.
1 A biographical sketch isattached.
2 The Tenth Amendmentstates: "The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved tothe States respectively, or to the people."
3 For a discussion of theProgressives' approach to the Constitution, see Richard A. Epstein,"The Monopolistic Vices of Progressive Constitutionalism,"2004-2005 Cato Supreme Court Review 11 (2005); Richard A.Epstein, How Progressives Rewrote the Constitution (CatoInstitute, 2006) (forthcoming).
4 See Arthur Harrison Coleed., Industrial and Commercial Correspondence of AlexanderHamilton 247 (A. M. Kelley, 1968).
6 Letter to Henry Lee, in6 The Writings of James Madison, at 81n. (Gaillard Hunted., G. P. Putnam's Sons, 1906) (original emphasis).
7 Act of Feb. 12, 1794, 6Stat. 13.
8 4 Annals of Cong. 170(1794).
9 6 Annals of Cong. 1727(1796).
10 Id. at 1724.
11 The Congress shallhave Power To lay and collect Taxes, Imposts and Excises, to paythe Debts and provide for the common Defense and General Welfare ofthe United States; ..."
12 4 Reg. Deb. 1632-34(1828). Madison made a similar point on several occasions. See,e.g., James Madison, "Report on Resolutions," in 6 The Writingsof James Madison 357 (Gaillard Hunt ed., G. P. Putnam's Sons,1900): "Money cannot be applied to the general welfare,otherwise than by an application of it to some particular measureconducive to the general welfare. Whenever, therefore, money hasbeen raised by the general authority, and is to be applied to aparticular measure, a question arises whether the particularmeasure be within the enumerated authorities vested in Congress. Ifit be, the money requisite for it may be applied to it; if it benot, no such application can be made." (emphasis in original). AndJefferson also addressed the issue. See, e.g., "Letter from ThomasJefferson to Albert Gallatin" (June 16, 1817) in Writings ofThomas Jefferson 91 (Paul Leicester Ford ed., New York, 1899):"[O]ur tenet ever was, and, indeed, it is almost the only landmarkwhich now divides the federalists from the republicans, thatCongress had not unlimited powers to provide for the generalwelfare, but were restrained to those specifically enumerated; andthat, as it was never meant they should . . . raise money forpurposes which the enumeration did not place under their action;consequently, that the specification of powers is a limitation ofthe purpose for which they may raise money."
13 Charles Warren,Congress as Santa Claus 32 (Arno Press, 1932).
14 H.R. 10203, 49thCong., 2d Sess. (1887).
15 18 Cong. Rec. 1875(1887).
16Kansas v.Colorado 206 U.S. 46, 89 (1907).
17 Contrast that withCongress's enactment of the Gun-Free Schools Act of 1990 (18 U.S.C.§ 922 (q)(1)(A) (1988 ed., Supp. V), which the Court foundunconstitutional in 1995, holding for the first time in nearly 60years that Congress had exceeded its authority under the CommerceClause. United States v. Lopez, 514 U.S. 549 (1995). Inenacting the statute, Congress had not even bothered to cite itsconstitutional authority for doing so.
18The Nation,Aug. 9, 1900, p. 105.
19 See Robert S.Summers, Pragmatic Instrumentalism: America's Leading Theory ofLaw, 5 Cornell Law Forum 15 (1978).
20 Progressives did notlimit their attention to economic regulation. In 1927, for example,we find Justice Oliver Wendell Holmes, the "Yankee from Olympus,"writing for the Court to uphold a Virginia statute that authorizedthe sterilization of people thought to be of insufficientintelligence. Buck v. Bell, 274 U.S. 200 (1927). Therefollowed in this country some 70,000 sterilizations. For aninsightful discussion of the case and surrounding issues, seeWilliam E. Leuchtenburg, Mr. Justice Holmes and Three Generationsof Imbeciles, ch. 1 in The Supreme Court Reborn: TheConstitutional Revolution in the Age of Roosevelt (1995).
21Buck v. Bell,supra note 20, is a good example, as is Euclid v. AmblerRealty, 272 U.S. 365 (1926), which upheld a zoning ordinanceinvolving a regulatory taking of property without compensation.
22 Thus, on "BlackMonday," May 27, 1935, in three 9-0 decisions, the Courtinvalidated the National Industrial Recovery Act and theFrazier-Lemke Act on mortgage moratoria and, in Humphrey'sExecutor v. United States, circumscribed the president's powerto remove members of independent regulatory commissions. For adiscussion of this era, see Leuchtenberg, The Supreme CourtReborn, supra note 20.
23 262 U.S. 1, 65-66(1936).
24 7 U.S.C.A. 601(1933).
25 49 Stat. 620(1935).
26 301 U.S. 619, 640(1937).
28 Id. at 641.
29 301 U.S. 619 (1937);see also Wickard v. Filburn, 317 U.S. 111(1942)./p>
30 See Randy E. Barnett,The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101(2000); Brief of Amicus Curiae Cato Institute,Jones v. UnitedStates, 529 U.S. 848 (2000) (visited Oct. 21, 2005).; Cf.,Richard A. Epstein, The Proper Scope of the Commerce Power, 73Va. Law Review 1387 (1987).
31 304 U.S. 104 (1938).For a devastating critique of the politics behind the CaroleneProducts case, see Geoffrey P. Miller, The True Story ofCarolene Products, 1987 Supreme Cato Review397.
32 I have discussed thatmethodology in Roger Pilon, Foreword: Substance and Method at theCourt, 2002-2003 CatoSupreme Court Review vii. (2003).
33 See Bernard H.Siegan, Economic Liberties and the Constitution(1980).
34 See Gary Lawson,Making a Federal Case Out of It: Sabri v. United Statesand the Constitution of Leviathan. 2003-2004 Cato Supreme CourtReview 119 (2004).
35 Letter from FranklinD. Roosevelt to Rep. Samuel B. Hill (July 6, 1935), in 4 ThePublic Papers and Addresses of Franklin D. Roosevelt 91-92(Samuel I. Rosenman ed., 1938).
36 Rexford G. Tugwell, ACenter Report: Rewriting the Constitution, CenterMagazine, March 1968, at 20. This is a fairly clear admissionthat the New Deal was skating not simply on thin ice but on no iceat all. For comments from the other side, see, e.g., Gary Lawson,The Rise and Rise of the Administrative State, 107 Harvard LawReview 1231 (1994): "The post-New Deal administrative state isunconstitutional, and its validation by the legal system amounts tonothing less than a bloodless constitutional revolution;" RichardA. Epstein, Commerce Clause, supra note 30, at 1388: "Ithink that the expansive construction of the [commerce] clauseaccepted by the New Deal Supreme Court is wrong, and clearlyso."
37 That was pretty muchthe view of Justice Holmes in his famous dissent in Lochner v.New York, 198, U.S. 45 (1905). Declaring that the case was"decided upon an economic theory which a large part of the countrydoes not entertain," and adding that his "agreement or disagreement[with the theory] has nothing to do with the right of a majority toembody their opinions in the law," Holmes proceeded to read out ofthe Constitution all economic substance: "a constitution is notintended to embody a particular economic theory, whether ofpaternalism and the organic relation of the citizen to the state orof laissez faire." Id. at 75. But we find a similar view in manymodern conservatives as well. Thus, Robert H. Bork speaks of the"two opposing principles" of what he calls the "Madisoniandilemma." Our first principle, Bork says, "is self-government,which means that in wide areas of life majorities are entitled torule, if they wish, simply because they are majorities. The secondis that there are nonetheless some things majorities must not do tominorities, some areas of life in which the individual must be freeof majority rule." Robert H. Bork, The Tempting of America139 (Touchstone, 1990). That gets Madison exactly backward.Madison's vision was that in wide areas of life individuals areentitled to be free simply because they are born free. Nonetheless,in some areas majorities are entitled to rule because wehave authorized them to rule, giving them powers "few anddefined."
38 John Locke, TheSecond Treatise of Government, in Two Treatises ofGovernment (1960) (1690).
39 I have discussed thisissue more fully in Roger Pilon, Foreword: Can Law this UncertainBe Called Law? 2003-2004 Cato Supreme Court Review vii(2004).
40 For my critique of anopinion by Justice Anthony Kennedy distinguishing four "levels" ofreview, Turner Broadcasting System v. FCC, 512 U.S. 622(1994), see Roger Pilon, A Modest Proposal on "Must-Carry," the1992 Cable Act, and Regulation Generally: Go Back to Basics, 17Hastings Comm/Ent. Law Journal 41 (1994).
41 That is arguably whathappened in McConnell v. FEC, 124 S. Ct. 619 (2003),upholding the McCain-Feingold Campaign Finance Act, 116 Stat. 81(2002), which President George W. Bush signed while saying it wasunconstitutional. See Eric S. Jaffee, McConnell v. FEC:Rationing Speech to Prevent "Undue Influence," 2003-2004 CatoSupreme Court Review 245 (2004).
42 See Robert J.Reinstein, Completing the Constitution: The Declaration ofIndependence, Bill of Rights, and Fourteenth Amendment, 47Temple Law Review 361 (1993). In 1833 the Court had ruledthat the Bill of Rights applied only against the government createdby the document (the U.S. Constitution) to which it was appended.Barron v. Mayor and City Council of Baltimore, 32 U.S. 243(1833).
43 Warren, SantaClaus, supra note 13, front page, citing only to 22d Cong.,1st Sess.
44 Adam Smith, AnInquiry Into the Nature and Causes of the Wealth of Nations(1776).
45 Roger Pilon,Congress, the Courts, and the Constitution, ch. 3, in CatoHandbook on Policy (2005).