The Constitution guarantees a government of fixed and limited powers

[editor's note: This is the second in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

The Constitution guarantees a government of fixed and limited powers

Maxim: Government actions must be limited to those that meet a specifically identified goal of the Constitution.

The purpose of the Federal government is to exercise authority over those things which individuals or the States are either incapable or would be inefficient at managing on their own. Article 1, Section 8 contains the full list of those items so granted by the people to the Federal government. Opponents of the Constitution nonetheless argued during the ratification hearings in several states that without explicit guarantees of certain individual rights, the Founders had left open the path to tyranny.

Certain rights are absolute, that is, they existed before government. Certain rights are fundamental but not absolute. Government has an obligation to protect without regulating the former and protect through regulation the latter. There are only 3 absolute rights: life, liberty, and the pursuit of happiness. All other rights must be protected not restricted through regulation. That some rights are explicitly named by the Constitution does not imply that a power ever existed to restrict those not so named. The Constitution is one of enumerated powers; if its not enumerated, it is not a granted power.

Both the Magna Carta and the British Constitution in some form guaranteed certain civil rights, and yet the Crown had, as Jefferson wrote in the Declaration of Independence, “through a long train of abuses and usurpations, evinced a design to reduce [the colonies] under absolute despotism.” These events were still fresh in the minds of the opponents and therefore they sought some additional guarantee.

In September of 1789, the First Congress of The United States of America offered a series of resolutions that ultimately would become the Bill of Rights. Of important note is that the Bill of Rights expresses rights held by individuals, not collective rights held by the States. A clear reading of the wording proves that this is the case, as the framers were careful to use the words “Government,” “people,” and “States.”

It is important to remember that the Constitution is a grant of powers from the people and States to the central government. Thus, a clear text reading of the Constitution could not lead one to a conclusion contrary to what the 9^th Amendment made explicit (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

Practically, what all this means is that anytime Congress through legislation or action oversteps the bounds of one of the specific duties listed in Art. 1 Section 8, it is the responsibility of the President to veto the legislation, or the people to oppose the action through the proper channel of the Judicial Branch. Once referred for review to the Judicial Branch, it becomes the responsibility of the cognizant Judges or Justices to declare such actions null and void. This is all part of the system of checks and balances. Despite this, Congress has routinely enacted legislation that lies far outside one of the enumerated powers.

Alexander Hamilton, in the very first Administration, sought to expand the role of government far beyond the bounds of the Constitution. His ambitions contrasted sharply with the views of the Republicans, who where just as fervently tied to State's rights. The first quarter century of Independence saw bitter feuds between Hamilton's Federalists and Jefferson's Republicans.

Emboldened by a series of Supreme Court rulings (Marbury v. Madison [1803], McCulloch v. Maryland [1819], Cohens v. Virginia [1821], Gibbons v. Ogden [1824]) that greatly enhanced the power of the Federal Government, the Federalists saw virtually no limit to what they could justify under the “necessary and proper” and “general welfare” clauses. It is now doctrine in the legal system that Congress is the only arbiter of what falls under theses Constitutional injunctions. By declining to consider these claims as justiciable, the legal branch of our tripartite system has abrogated their responsibility to curtail these Congressional transgressions.”

But just as each branch has limited powers, so too is the principle that separation of those powers is Constitutionally guaranteed. No branch of government can delegate its powers to another, nor can one branch assume powers abrogated by another. Yet this is precisely what is happening routinely today. From Congress's passing of “Authorization to Use Military Force” resolutions for every overseas military operation since World War II, to the Senate eusing their responsibility to provide “advice and consent” to block judicial appointment, Congress has sought to unlawfully delegate some powers while equally unlawfully expanding others.

The American Constitution was unique in that it created a government of delegated powers. It used to be common practice in the early years of the Republic for bills before Congress to identify the specific clause in the Constitution that authorized the action. However, once Congress realized that the courts would allow virtually anything as long as Congress invoked the “necessary and proper” or “general welfare” clauses, this practice ceased. We must return to the original system. Congress must identify the specific grant of power that authorizes any potential legislation. Congress must confine its activities to those that fall within the narrow range contemplated by Article 1, Section 8. Congress must also exercise fully those powers, while simultaneously staying out of the business of the other branches.