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April 1, 1995

The Unconstitutional Congress

The GOP Misses the Best Argument for Limiting Government


"The framers of the Constitution were great clockmakers in the science of statecraft, and they did, with admirable ingenuity, put together an intricate machine, which promised to run indefinitely, and tell the time of the centuries."--James M. Beck,
Solicitor General of the United States, 1925-28

I n 1800, when the nation's capital was moved from Philadelphia to Washington, D.C., all of the paperwork and records of the United States government were tightly packed into 12 boxes, and then transported the 150 miles to Washington on a horse and buggy. That was truly an era of lean and efficient government.

In the early years of the Republic, government bore no resemblance to the colossal empire it has evolved into today. In 1800, the federal government employed 3,000 people and had a budget of less than $1 million ($100 million in today's dollars). That's a far cry from today's federal budget of $1.6 trillion and workforce of 3 million.

Since its frugal beginnings, the U.S. federal government has come to subsidize everything from research into Belgian endives to maple-syrup production to the advertising of McDonald's french fries in Europe and Japan. In a recent moment of high drama before the Supreme Court, during oral arguments involving the application of the interstate-commerce clause of the Constitution, a bewildered Justice Antonin Scalia pressed the solicitor general to name a single activity or program that our modern-day Congress might undertake that would fall outside of the bounds of the Constitution. The stunned Clinton appointee could not think of one.

To win the epic battle over the budget that is now looming on Capitol Hill, this is precisely the type of question that fiscal conservatives need to start asking. It is instructive that during the entire debate over the controversial 1994 Crime Bill, not a single Republican rose up on the House or Senate floor and attacked the $10 billion in social spending on the grounds, not that it was wasteful, but that most, if not all, of it is simply not the proper responsibility of the federal government. Conservatives should have been asking the question: Where is the authority under the Constitution for Congress to spend money on midnight basketball, modern-dance classes, self-esteem training, and the construction of swimming pools?

In other words, fiscal conservatives need to go beyond making the case that government wastes money--which it surely does--and start making the case that most federal spending today is illegitimate because it lies outside Congress's spending powers under the Constitution.

The idea is not radical, nor is the strategy futile. For the first 150 years of this nation's history, proponents of limited government in Congress and the White House routinely argued--with great success--a philosophical case against the creation and expansion of federal social-welfare programs.

There are critical lessons here for Newt Gingrich and his allies in their crusade to radically downsize government and topple the "old world order" in Washington.

The U.S. Constitution is fundamentally a rulebook for government. Its guiding principle is the idea that the state is a source of corruptive power and ultimate tyranny. Washington's responsibilities were confined to a select few enumerated powers, involving mainly protecting the national security of the nation and preserving public safety. In the realm of domestic affairs, the Founders foresaw limited federal interference in the daily lives of its citizens. The minimal government involvement in the domestic economy that was envisioned by the drafters of the Constitution would be financed and delivered at the state and local levels.

The enumerated powers of the federal government to spend money are defined in the Constitution under Article I, Section 8. These powers include the right to "establish Post Offices and post roads; raise and support Armies; provide and maintain a Navy; declare War;" and other activities related mostly to national defense.

No matter how long one searches through the Constitution, it is impossible to find any language that authorizes at least 90 percent of the civilian programs that Congress crams into the federal budget today.

There is no granting of authority for the federal government to pay money to farmers, run the health-care industry, impose wage and price controls, give welfare to the poor and unemployed, provide job training, subsidize electricity and telephone service, lend money to businesses or foreign governments, or build parking garages, tennis courts, and swimming pools. The Founders did not create a Department of Commerce, a Department of Education, or a Department of Housing and Urban Development. This was no oversight: they simply never imagined that government would take an active role in such activities.

Recognizing the propensity of governments to expand, and, as Jefferson put it, for "liberty to yield," the Framers added the Bill of Rights as an extra layer of protection of the rights of individuals against the state. The Bill of Rights was inserted to ensure that government would never grow so large that it could trample on the individual and economic liberties of American citizens. The 10th Amendment to the Constitution states the Founders `intentions quite clearly and unambiguously: "The powers not delegated to the United States by the Constitution...are reserved to the States respectively, or to the people." Such plain language would not seem to be easy to misinterpret. Put simply, if the Constitution doesn't specifically permit the federal government to do something, then it doesn't have the right to do it.

The original budget of the U.S. government closely reflected the founder's vision. The very first appropriations bill passed by Congress consisted of 111 words--not pages, mind you, words. The main expenditures went toward paying the costs of the military, including $137,000 for "defraying the expenses" of the Department of War, $190,000 for retiring the debt from the Revolutionary War, and $95,000 for "paying the pensions to invalids." As for domestic activities, $216,000 was appropriated (or roughly what the domestic agencies spend in 15 seconds today!).

Even expenditures for the most charitable of purposes were routinely spurned as illegitimate. In 1794, James Madison wrote disapprovingly of a $15,000 appropriation for French refugees: "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."

This view that Congress should follow the original intent of the Constitution was restated even more forcefully on the floor of the House of Representatives two years later by William Giles of Virginia, who condemned a relief measure for fire-victims. Giles insisted that it was not the purpose nor the right of Congress to "attend to what generosity and humanity require, but to what the Constitution and their duty require."

In 1827, the famous Colonel Davy Crockett was elected to the House of Representatives. During his first term of office, a $10,000 relief bill for the widow of a naval officer was proposed. Colonel Crockett rose in stern opposition and gave the following eloquent rebuttal to the bill:

"We must not permit our respect for the dead or our sympathy for the living to lead us into an act of injustice to the balance of the living. I will not attempt to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money."

After he sat down and a vote was taken, instead of unanimous approval as had been assumed, the measure failed with only a few votes in support of it. (Legend has it that Crockett, one of the poorest members of the House at that time, was the only one to contribute substantially to a private charitable fund for the widow.)

In a famous incident in 1854, President Franklin Pierce was pilloried for vetoing an extremely popular bill intended to help the mentally ill. The act was championed by the renowned 19th-century social reformer Dorothea Dix. In the face of heavy criticism, Pierce countered: "I cannot find any authority in the Constitution for public charity." To approve such spending, argued Pierce, "would be contrary to the letter and the spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."

Grover Cleveland, the king of the veto, rejected hundreds of congressional spending bills during his two terms as President in the late 1800s, because, as he often wrote: "I can find no warrant for such an appropriation in the Constitution."

Were Jefferson, Madison, Crockett, Pierce, Cleveland, and the countless other lawmakers during that age merely hardhearted and uncaring penny pinchers, as the federalists often charged? Did they not have within them sympathy for fire victims? Or the mentally ill? Or widows? Or impoverished refugees?

The answer is of course they were not uncharitable scrooges. They simply felt honorbound to uphold the Constitution. They perceived--we now know correctly--that once the genie was out of the bottle, it would be impossible to get it back in. Any unwarranted government interference, no matter how righteous or well-intended, would be, as Madison put it, "but the first link of a long chain of repetitions." Of course, we now know just how remarkably prescient Madison and his colleagues were.

With notable exceptions, through the first 100 years of the Republic, Congress, the President, and the Courts remained mostly faithful to the letter and spirit of the Constitution with regard to government spending. As economic historian Robert Higgs noted in his famous book Crisis and Leviathan, until the 20th century, "government did little of much consequence or expense" other than running the military. The total expenditures for the federal budget confirm this assessment. Even as late as 1925, the federal government was still spending just 4 percent of national output.

Several major turning points in American history mark the reversal of this ethic of extremely judicious use of the government's powers to spend and tax. The first was the passage in 1913 of the 16th Amendment, which permitted a federal income tax. This was the first major tax that was not levied on a proportional or uniform basis. Hence, it allowed Congress a political free ride: It could provide government benefits to many by imposing a disproportionately heavy tax burden on the wealthy.

Prior to enactment of the income tax, Congress's power to spend was held in check by its limited power to tax. Throughout the 19th century, most federal revenues came from tariffs and land sales. Neither source yielded huge sums. The income tax, however, soon became a cash cow for a Congress needing only the feeblest of excuses to spend money.

The second major event that weakened constitutional protections against big government was the ascendancy of Franklin Roosevelt and his New Deal agenda to the White House during the Great Depression. During this era, one after another constitutional safeguards against excessive government were either wholly ignored or spectacularly misinterpreted by the Congress and the courts. Most notable and tragic has been the perversion of the "general welfare" clause of the constitution. Article I, Section 8 of the Constitution says:

"The Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts, provide for the common defense, and promote the general welfare of the United States."

Since the 1930s, the courts have interpreted this phrase to mean that Congress may spend money for any purpose, whether an enumerated power of government or not, as long as legislators deem it to be in "the general welfare of the United States." That is, this innocent clause has become the equivalent of carte blanche spending authority for Congress.

This was exactly the opposite of what the drafters of the Constitution intended. It is almost beyond dispute that the Founders meant the general-welfare clause to be a limiting provision on government. They meant that the government's spending and taxing powers could only be used for purposes that were in the general welfare of the nation and its citizens collectively, not of particular groups of citizens--farmers, students, welfare recipients, minorities, the disabled. Jefferson was forever concerned that the general- welfare clause might be perverted. To clarify its meaning, in 1798 he wrote: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

In fact, when the early federalists began to argue that the general-welfare clause gave Congress a generalized spending authority, they were forcefully rebuked. "Can it be conceived that the great and wise men who devised our Constitution," asked South Carolina Senator William Drayton in 1828, "should have failed so egregiously as to grant a power which rendered restriction upon power practically unavailing?" And then he asked the question that is really the essence of the issue: "If Congress can determine what constitutes the general welfare and can appropriate money for its advancement, where is the limitation to carrying into execution whatever can be effected by money?"

Exactly.

By the late 19th century, Congress had adopted the occasional practice of enacting spending bills for public charity in the name of "promoting the general welfare." These laws often made a mockery of this clause. In 1884, Senator John Morgan of Alabama stormed to the Senate floor to describe the impact of a relief bill approved by Congress to provide $400,000 of funds for victims of a flood on the Tombigbee River. Morgan lamented:

"The overflow had passed away before the bill passed Congress, and new crops were already growing upon the land. The funds were distributed in the next October and November elections upon the highest points of the sand mountains throughout a large region where the people wanted what was called `overflow bacon.' I cannot get the picture out of my mind. There was the General Welfare of the people invoked and with success, to justify this political fraud; the money was voted and the bacon was bought, and the politicians went around with their greasy hands distributing it to men who cast greasy ballots. And in that way the General Welfare was promoted!"

But the real avalanche of such special-interest spending did not start until some 50 years later in the midst of the Depression. In their urgency to spend public-relief funds to combat hard times, legislators began to sound openly contemptuous of the constitutional restraints designed to prevent these raids on the public purse. "I have no patience whatever with any individual who tries to hide behind the Constitution, when it comes to providing foodstuffs for our citizens," argued New York Representative Hamilton Fish in support of a 1931 hunger relief bill. "I am going to give the Constitution," said James O'Conner, a congressman from Louisiana in that same year, "the flexibility--as will enable me to vote for any measure I deem of value to the flesh and blood of my day."

The tradition of pork-barrel spending began in earnest during this period. In 1931, for instance, Congress introduced an act to provide flood relief to farmers in six affected states. But by the time the bill made its way through Congress, farmers in 15 states became its beneficiaries.

One Oklahoma congressman succinctly summarized the new beggar-thy-neighbor spending ethic that had overtaken Capitol Hill: "I do not believe in this pie business, but if we are making a great big pie here--then I want to cut it into enough pieces so that Oklahoma will have its piece."

In 1932, Charles Warren, a former assistant attorney general, wrote a popular book entitled Congress as Santa Claus. "If a law to donate aid to any farmer or cattleman who has had poor crops or lost his cattle comes within the meaning of the phrase `to provide for the General Welfare of the United States,' " he argued, "why should not similar gifts be made to grocers, shopkeepers, miners, and other businessmen who have made losses through financial depression, or to wage earners out of employment? Why is not their prosperity equally within the purview of the General Welfare?"

Of course, we now know Congress's answer: All of these things are in the "general welfare." This is why we now have unemployment compensation, the Small Business Administration, the Department of Commerce, food stamps, the black-lung program, and on and on. Of course, all of this special interest spending could have been--no, should have been--summarily struck down by the courts as unconstitutional. But tragically, the Supreme Court eventually served as a willing co-conspirator in these spending schemes.

In a landmark 1936 decision, the Supreme Court inflicted a mortal blow to the Constitution by ruling that the Agricultural Adjustment Act was constitutional. The court's interpretation of the spending authority of Congress was frightful and fateful. In its ruling, the court wrote: "The power of Congress to authorize appropriations of public money for public purposes is not limited by the grants of legislative power found in the Constitution."

James M. Beck, the great American legal scholar and former solicitor general, likened this astounding assault on the constitution to the Titanic's tragic collision with the iceberg. "After the collision," wrote Beck, "which was hardly felt by the steamer at the time, the great liner seemed to be intact and unhurt, and continued to move. But a death wound had been inflicted under the surface of the water, which poured into the hold of the steamer so swiftly that in a few hours the great ship was sunk."

The New Deal Court essentially told Congress: It doesn't matter what the Constitution says or what limits on government it establishes, you are empowered to spend money on whatever you please.

And so Congress does, even to the extent that its profligacy has placed the nation in great economic peril.

Other than the Great Depression, by far the most important events that have fostered the growth of government in this century have been the two world wars. Periods of national crisis tend to be times where normal constitutional restraints are suspended and the nation willingly bands together under government for a national purpose of fighting a common enemy.

Yet the recurring lesson of history is that once government has seized new powers, it seldom gives them fully back after the crisis ends. Surely enough, this phenomenon is one of Parkinson's famous laws of the public sector:

"Taxes [and spending] become heavier in times of war and should diminish, by rights, when the war is over. This is not, however, what happens. Taxes regain their pre- war level. That is because the level of expenditure rises to meet the wartime level of taxation."

In the five years prior to World War I, total federal outlays averaged 2 percent of GDP. In the five years after the war, they averaged 5 percent of GDP. In the years prior to that war the top income tax rate was 7 percent. During the war the tax rate shot up to 70 percent, which was reduced afterward, but only to 24 percent--or more than three times higher than it had originally been.

Government regulations of the private economy also proliferate during times of war and often remain in force afterward. Economist Robert Higgs notes that during World War I the federal government nationalized the railroads and the telephone lines, requisitioned all ships over 2,500 tons, and regulated food and commodity prices. The Lever Act of 1917 gave the government the power to regulate the price and production of food, fuels, beverages, and distilled spirits. It is entirely plausible that without the war, America would never have suffered through the failed experiment of Prohibition.

World War II was also the genesis of many modern-day government intrusions-- many of which were and still are of dubious constitutionality.

These include wage and price controls, conscription (which lasted until the 1970s), rent control in large cities (which still exists), and, worst of all, federal income- tax withholding.

In the post-World War II era, Congress has often relied on a war theme to stretch its authority into domestic life. Lyndon Johnson launched the modern welfare state in the 1960s, when he declared a "war on poverty." In the early 1970s, Richard Nixon imposed across-the-board wage and price controls--the ultimate in government command and control--as a means of winning the "inflation war." In the late 1970s, Jimmy Carter sought to enact a national energy policy with gas rationing and other draconian measures, by pleading that the oil crisis had become "the moral equivalent of war."

While government has clearly been the major beneficiary of national emergency, the principal casualty has been liberty. This should give us pause as Congress now sets out to solve the health-care crisis, the education crisis, the epidemic of crime, and so forth. To Congress, a crisis is an excuse to expand its already near-ubiquitous domain.

Reinvented Government

Shortly before his death, Benjamin Franklin was asked how well the Constitution would survive the test of time. He responded optimistically that "everything appears to promise it will last." Then he added his famous quip, "But in this world nothing is certain but death and taxes."

Ironically, the death wound that has been driven into the Constitution has been placed there by precisely those who insist that they want to make it "a living document." Yet to argue that we return to the spirit and the true meaning of this "living document" is to invite a look of scorn, malice, or outright disbelief from modern-day intellectuals.

One is accused of trying to "turn back the clock" when urging that government be guided by the original intent of the Constitution. And so few make the case. This, ultimately, has left government free to curtail one economic liberty after another. So not surprisingly, these liberties have fallen like a row of dominoes.

It is a strange and sad curiosity that in the entire debate now raging in Washington over downsizing government, not a single member of Congress of either party has objected to spending on the grounds that "I cannot lay my finger on the article of the Constitution which grants a right to Congress to expend money or regulate the economy for this purpose." It shows how far we have strayed from constitutional government that such a protest is not even bothered with.

What the Congress needs now is a few Madisons, Jeffersons, Pierces, and Crocketts.