The Fallacy of a Return to the Constitution

In disapproval of the current state of affairs, there are various retreats people will follow. My goal here is to refute one of these retreats and force people to start thinking of logic backed solutions. A retreat that I often see is one of “going back to the Constitution”. The idea here being that government has strayed from the Constitution and the only thing needed to rectify the state of affairs is to get government back on the path of the Constitution. However, this is a very flawed idea, and I will now go into why.

Before I go into its troubles, I will say that the Constitution has many merits and was quite opportune. In absence of the Constitution, there would have continued to be a confederacy which amounted to a weak union. The federalist papers go into, at length, the problems with a weak union. A weaker union would have made for a less stable America, and less stable environments tend to hinder progress.

From a broad view, the measure of the effectiveness of a system can be taken by measuring the results of that system. In this case, if the current state of affairs, (the results of the implementation of the Constitution), is unfavorable, then why would anyone think that resetting the system would lead to some different outcome? However, this is certainly not enough to satisfy some, so I will go into detail about the Constitution of the United States.

There are a couple cases where things can go awry in the US Constitutional government. For one, government can choose not to follow the Constitution. Even if those in government were composed of all upstanding people who would do nothing contrary to the word of the Constitution, the words of the Constitution allow interpretation that can stray from the intent of the writers. And, when the words are interpreted in either, cases where the writers did not envision the situation, or in cases where the writers did not intend the situation, unintended powers for the federal government can be justified by the word of the Constitution. And, additionally, the lack of a granted power is not a restriction of power.

Based on the words of the Constitution, what limits are there to the powers of the federal government? Well, there are the limitations in article 1, section 9. Then there is the bill of rights. And, in the bill of rights, there is the line “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. “. However, this is one of those lines that Jay, Hamilton, and Madison probably would have argued needn’t be there and was there primarily for the comfort of those who feared the federal government would take powers not prescribed for it. For example, in the Federalist Papers:

        "Suppose, by some
        forced constructions of its authority (which, indeed, cannot easily be
        imagined), the Federal legislature should attempt to vary the law of des-
        cent in any State, would it not be evident that, in making such an at-
        tempt, it had exceeded its jurisdiction, and infringed upon that of the
        State?" - IE, hard to imagine the federal government making inheretance tax laws.
        "would it not be equally evident that this was an inva-
        sion of that concurrent jurisdiction in respect to this species of tax [in regards to land tax], which
        its Constitution plainly supposes to exist in the State governments? If
        there ever should be a doubt on this head, the credit of it will be entirely
        due to those reasoners who, in the imprudent zeal of their animosity to
        the plan of the convention, have labored to envelop it in a cloud calcu-
        lated to obscure the plainest and simplest truths.

Indeed, it was interpreted prior to the bill of rights with that Amendment 10 limitation clause that the federal government’s powers were indeed limited in justification to those prescribed by the Constitution, and those not prescribed by the Constitution were state affairs. Even with this amendment, however, there is still nothing explicitly stating that the federal government should not engage in actions which are not prescribed by or prohibited in the Constitution. In other words, it is not a breach of the Constitution for the federal government to form new powers; Instead, these additional powers are simply unsupported by the Constitution. What does it mean to be unsupported by the Constitution? It means that the state, the theoretical party to the Constitution, does not need to bow to the additional powers. However, if a state abides by the new powers of the federal government, then these new powers of the federal government are as effective as the powers given by the Constitution and the remedies the people have are either to move to a different state or to attempt to get their current state to stop bowing to the new powers of the federal government.

On a side note, in the bill of rights Amendment 1, where it states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”, this is prohibiting congress, not the states. The other ammendments not specifically stating their application is towards congress are towards both congress and the states, but, in this case, the state has the power to make laws respecting the establishment of religion, prohibiting the free exercise thereof, etc.

What method might the federal government employ to gain new powers? One method would be the creation of various overstepping laws. This leads to the question, is congress restricted in what laws they can make? There is the “No Bill of Attainder or ex post facto Law shall be passed.” statement, the Bill of Rights, and the “but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” statement; but, the most significant restriction that appeared to me was in this: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”.

The sentence seems to be noting with “which” that the laws of the United States shall be made in pursuance of the Constitution – a sort of restriction limiting congress to only make laws which are in pursuance to the Constitution. However, this can also be interpreted such that it is not a restriction, but rather, by the fact a law was passed, it is consequently in pursuance to the Constitution; ie, any law congress makes is in pursuance to the Constitution. Then, there is a third interpretation seemingly provided by Hamilton with “It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE Constitution”. In other words, only the laws that congress passes which are in pursuance to the Constitution will be supreme law of the land. Another interpretation would be that the laws congress passes which are Of the United States are supreme; in contrast to laws of the District or laws of Lolipop land that congress might make. These last two interpretations do not limit congress to making laws that are in pursuance to the Constitution. As such, congress can go about making laws about what to wear and eat if they wanted.

Madison and Hamilton both argue regarding this topic that the states and the people will check the power of the federal government, Madison goes so far as to introduce the concept that the states, in protection of their own power, would inform the people and the people would then elect different federal level representatives. Well, that might work when you have a mindful and territorial state government, an informed people, and correctly functioning vote tabulators.

There is another part to the sentence in the Constitution mentioned in the above paragraph that peaked my interest: “and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”. What does it mean that treaties made under the authority of the US shall be supreme law of the land? The Constitution does not even attempt to define limits for what can be included in treaties. To define limitations would undermine the sovereignty that appears to be necessary when making treaties. As such, I will consider the meaning to be simply that the treaty was made by the method prescribed in the Constitution.

It would seem the easiest way to subvert the US Government would be through a treaty.

  • “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy”
  • “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business;”
  • “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”

So, essentially, there can be a secret meeting of senators, presumably constituting a quorum, and the president where the president and at least 2/3 of the senators agree on some treaty which wholly corrupts the system. Further, treaties do not need to be made public; which means if this ever did happen, the citizenry never need be made aware of it.

Then, there is the idea that where the ends are given, the means are justified. That is, since the federal government is authorized “To establish Post Offices and post Roads”, it is assumed that the means for setting up these Post Offices are also authorized. Combining this idea with some indeterminate part of the Constitution, like “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, and you will have the federal government exercising quite extravagant means for quite mundane ends. There is no explicit redress to these encroachments. So, you have a state of affairs where the power of the State would not increase, apart from by amending the constitution, and the power of the Federal Government would likely do nothing but increase. And, as the power of the federal government increased, the power to coerce and/or persuade states would also increase.

Another aspect comes from the Federalist Papers:

       "At the expiration of twenty-
        five years, according to the computed rate of increase, the number of rep-
        resentatives will amount to two hundred, and of fifty years, to four hun-
        dred. This is a number which, I presume, will put an end to all fears
        arising from the smallness of the body.

The idea here being that the number of representatives to the number of representees would stay roughly the same ratio, and this ratio was 30,000/1. The reason behind this proportionality was the idea that power corrupts, the idea that the more people a representative represents, the more powerful that representative is, and the idea that by limiting the amount of people a representative represents, the less likely that representative will be corrupted by power. However, it does not appear the writers of the Constitution or of the Federalist Papers envisioned a country with 300 million people, or a county of 300 million people represented at a ratio of roughly 1 to 680,000. And, even if the ratio were kept and there were ~13k representatives, there would be problems stemming from the size of this body of representatives.

There are plenty of other aspects I could go into, but it doesn’t serve to batter the Constitution when my purpose is only to show it is imperfect and a poor retreat path for those who would claim the federal government was too large. The Constitution relies on the scruples of the men it causes to be employed and the impotency of forces that might subvert it. It does both of these to a lesser extent than many other governments, but, still, it appears insufficient in dealing with the subversion factors of the present.