Monday, September 03, 2007

The Slippery Slope of Constitutional Revisionism

In "The Erosion of the Constitutional Contract," I attribute the accretion of government power to the misapplication of four elements of the U.S. Constitution:
  • the phrase "promote the general welfare" in the Preamble [and in Article I, Section 8, Clause 1]. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth [or an unbounded power to tax and spend].
  • the power of Congress "to regulate commerce...among the several states [Article I, Section 8, Clause 3]." This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.
  • the authority of Congress "[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8, Clause 18]." The words "necessary and proper" have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.
  • the "equal protection" clause of Amendment XIV: "...nor shall any State...deny to any person within its jurisdiction the equal protection of the laws." Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special "rights" to specific, "protected" groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the "protected" groups. As the proponents of such groups might ask, is it fair?
Here, with the help of Wikipedia, I sketch our path down the slippery slope to our present state, which I once captured in these questions:
If liberty is so bounteous, why don't we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution?
Our way down the slope has been led, of course, by the U.S. Supreme Court. I restrict the following quotations from Wikipedia to historically accurate background material and summaries of the Court's actions. My notes and comments are in brackets and initialed LC.

The General Welfare Clause (a.k.a. the Taxing and Spending Clause)
Two theories of the taxing power have been advocated by constitutional scholars: (A) the narrower Madisonian view that taxation must be tied to one of the other specifically enumerated powers such as regulating commerce or providing for the military, and (B) the broader Hamiltonian view that taxation is a separately enumerated, independent power, and that Congress may tax and spend in any way that will benefit the general welfare....

[The Madisonian view was] overturned in United States v. Butler, 297 U.S. 1 (1936)[3]. In that case the Court held that the power to tax and spend is an independent power; that is, that the Taxing and Spending Clause gives Congress power it might not have anywhere else. [See also the history of Social Security, which cites other instances -- most notably, the passage of the Social Security Act -- in which the Court conveniently adapted its tune to the times, as if Madison's long-prevailing view of the "tax and spend clause" had been a mere whim of the Court. John Eastman, in "Restoring the General to the General Welfare Clause," argues at length and convincingly "that the blank check interpretation given to the clause since Butler simply cannot be squared with the original understanding of either Hamilton or Madison.": LC.]

The modern Supreme Court has interpreted this clause to give Congress a plenary power to impose taxes and to spend money for the general welfare, including the power to force the states to abide by national standards by threatening to withhold federal funds. See South Dakota v. Dole, 483 U.S. 203 (1987)[4]. [I need say no more: LC.]
The Commerce Clause
In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that....[contrary to Amendment X: LC] "[T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines."...

In Swift v. United States (1905), the Court ruled that the clause covered meatpackers; although their activity was geographically "local," they had an important effect on the "current of commerce" and thus could be regulated under the Commerce Clause....

The clause was the subject of conflict between the U.S. Supreme Court and the Administration of Franklin D. Roosevelt in 1935-37 when the Court struck down several of the President's "New Deal" measures on the grounds that they encroached upon intrastate matters. After winning the 1936 election, FDR proposed a plan to appoint an additional justice for each unretired Justice over 70. Given the age of the current justices this permitted a court population of up to 15....

There was widespread opposition to this "court packing" plan, but in the end the New Deal did not need it to succeed. In what became known as "the switch in time that saved nine," Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides in 1937 and, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over unions across the country.

In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In Wickard v. Filburn, (1942) the Court upheld the Agricultural Adjustment Act, stating that the act of growing wheat on one's own land, for one's own consumption, affected interstate commerce, and therefore under the Commerce Clause was subject to federal regulation....

The wide interpretation of the scope of the commerce clause continued following the passing of the Civil Rights Act of 1964, which aimed to prevent business from discriminating against black customers. In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state....

Many described the Rehnquist Court's commerce clause cases [links added: LC] as a doctrine of "new federalism". The outer limits of that doctrine were delineated by Gonzales v. Raich (2005), in which Justices Scalia and Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. The court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered interstate commerce. [Thus giving Congress the power to regulate anything done anywhere within the United States: LC.]
The Necessary and Proper Clause
Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers ("foregoing powers"). Others argue that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the elastic clause because of the great amount of leeway in interpretation it allows....

In McCulloch v. Maryland [1819],...the court held that because the Congress has the power to control national economic policy [a power not specified or enumerated in the Constitution: LC], creating a national bank is necessary and proper to carry out its duties....

The clause has been paired with the commerce clause to provide the constitutional basis for a wide variety of laws. For example, Congress may make it a crime to transport a kidnapped person across state lines, because the transportation would be an act of interstate activity over which the Congress has power. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, were supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses. United States v. Lopez was the first modern case finding limits to Congress's authority in this regard. [Those limits were short-lived, as discussed in the last paragraph of the section on the Commerce Clause: LC.]
The Equal Protection Clause
[T]he Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate; and the story of the Equal Protection Clause is the gradual explication of its meaning [and the gradual corruption of its meaning: LC].

The next important post[-Civil W]ar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "State Action Doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state....

The Supreme Court has [ruled] that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies. [What the Court taketh away with one hand it giveth back with the other: LC.]

Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment.... [What Congress cannot do under one judicially created loophole it can do under another: LC.]

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. [Thus undoing arrangements that the Framers implicitly accepted when they guaranteed each State a republican form of government: LC.]

It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights....[But a majority of the Court is not to be persuaded by the logic and meaning of the Constitution when it has a result to accomplish: LC.]
And so it goes, down the slippery slope of constitutional revisionism toward a dystopian future, in which Congress may recklessly (but with impunity) herd us into absolute, collectivist conformity. What has been done by the Supreme Court is likely to remain done, given stare decisis. And so what has been done will become precedent for the few remaining leaps down the slippery slope. Dystopia, we're almost there!

Related post: Slopes, Ratchets, and the Death Spiral of Liberty (among many others in the category Constitution - Courts - Law - Justice)