Wednesday, March 27, 2013

How The Government (Legitimately) Gets New Power

By Dave Dargo

There was a time, in our not to distant past, when virtually everyone understood that the national government had powers that were limited to those specifically granted by the people and enumerated in the Constitution.

It wasn't until the progressive movement of the 1930s that the national government attempted to use its powers to regulate interstate commerce as a means to expand its reach into areas that were traditionally left to the states.  Roosevelt's new deal programs all looked at expanding the role, reach and power of the national government in order to solve a desperate economic situation and to promote the programs they wanted to see implemented on a national level.

The progressives of the 1930s were so successful that many simply assume that the national government legitimately has the powers they wield today.  Many of those powers were never intended to exist.

During the Constitutional Convention the Committee on Detail proposed another power be adopted by the national government:
...and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such a manner as shall not interfere with the Government of individual States in matters which respect only their internal police, or for which their individual authorities may be competent.
In Restoring the Lost Constitution, The Presumption of Liberty, Randy E. Barnett goes on to explain that by rejecting such broad language the Convention affirmed that Congress lacked a general power to legislate in the public interest.  The Congress only had those powers that were specifically granted to it through enumeration.

The powers that Congress started adopting in the 1930s under the penumbra of the Commerce Clause stretches the definition of commerce so far as to make it unrecognizable.  During our nation's formative years the states would wield powers over one another through the use of tariffs as goods moved from one state to another.  A manufacturer in Pennsylvania wishing to deliver goods to North Carolina, for example, may have been required to pay a tariff to the states of Maryland and Virginia.  This is why the founders empowered Congress with the ability to regulate interstate commerce; this gave Congress the power to prevent individual states from interrupting the flow of goods across the new nation.  Commerce at the time meant just that, the trafficking of goods and the exchange of one thing for another.  It didn't mean manufacturing or farming or the governing of activities that occurred solely within a single state.

Prohibition raid at Elk Lake, Canada
In fact, when the people decided to ban the consumption of alcohol in 1917 the language of the new Constitutional amendment recognized the limits of Congressional power.  Section 2 of the 18th amendment specifically granted Congress the power to enforce the amendment.  The people, and the Congress, at the time recognized that without Section 2 the Congress would have no legitimate power to enforce the eighteenth amendment.  Thus, the people decided to grant the power to the national government.  This is how the national government legitimately gets new powers, through the granting of those powers by the people to the government.

Contrast the example of the 18th amendment where the people decided to grant the national government a new power, the power to legislate against the consumption of alcohol, with a law such as the Gun Free School Zones Act of 1990.  The original Gun Free School Zones Act was overturned by the Supreme Court of the United States because its adoption exceeded the powers of the national government.  Not to be deterred by the mere formalities of the Constitution, the national government passed the new Gun Free School Zones Act of 1990 and added the following language so as to make it "constitutional":
...a firearm that has moved in or that otherwise affects interstate or foreign commerce...
This is not what the people meant when they granted the national government the power to regulate interstate commerce.  However, the movement that started in the 1930s is still alive and well and many people truly believe that the national government has such powers legitimately.  The current Gun Free School Zones Act doesn't regulate interstate commerce.  It regulates the activity of an individual when they are carrying an object that moved in interstate commerce.

While this law has not yet been challenged, if it were challenged and found to be valid then, presumably, Congress could regulate any activity it desired if you happened to be possessing an object that "moved in interstate commerce."

There is a legitimate method for the people to give the national government a new power; it's called a Constitutional Amendment.  There's also an illegitimate method for Congress to grab a new power, it's generally called the legislative process.

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