Are there any limitations on the federal government under the Constitution?
[Update a while later]
I don’t know if Radley’ site is still down, but meanwhile, via Paul Hsieh at Facebook, the nation’s political history in two lines:
Our political history in two lines:
“The Constitution is the guide which I never will abandon.” – G. Washington
“The Constitution? Are you serious?” – N. Pelosi
I don’t think she was serious when she took her oath of office. Then again, neither was George Bush, in that regard.
Link doesn’t work…
Sometimes it does, sometimes it doesn’t. The whole site seems to be intermittently up and down.
I can’t get the link to work, and I’m disappointed, because I’m curious about what sort of answer was expected, since it seems like a silly question. Here’s my attempt at a silly answer: Under the Constitution, article five lays out the limitations on the Federal government. So, for example, under the constitution, the Federal government had more limitations before 1808.
For your convenience, here’s Article 5:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Rand,
Per the ObamaCare defenders, Congress can do anything that is Necessary and Proper. So of course there are limits. The Feds cannot do anything that is unncessarry or improper.
But I suppose amending article 5 isn’t really any different from amending the rest of the Constitution, so, no, there could ultimately be no constitutional restrictions whatsoever if you can get the states to go along it with that idea just once, in order to get article 5 changed.
Rand, is this an alternate link?
http://www.dailybrisk.com/2010/12/what-if-new-congress-required-every.html
It asks “Do you believe the Constitution puts any restrictions on the powers of the federal government?
“If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?”
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The answer is that they wanted to slow down democracy and make it more orderly, attempting to ensure that a majority of the population and a majority of the regions (states) would be in favor of a new law. I don’t see how this is a question for only lefties — anyone can read (or, being humble, misread) the constitution!
The answer is that they wanted to slow down democracy and make it more orderly, attempting to ensure that a majority of the population and a majority of the regions (states) would be in favor of a new law
That is not the case. The Framers, Madison in particular, were deeply fearful of the universal failure of democracies up to that time, particularly because they were usually followed by periods of tyranny. They studied these failures with great care, asking what might prevent the failure of their own state.
What they concluded is that it was necessary to preserve the heterogeneity of the republic, to ensure that it remained an association of competing and distinct philosophies and governing principle, with no one philosophy or class gaining the upper hand except very temporarily. It was only through this enduring struggle between interests that the liberty they so cherished would be preserved.
They had no interest in maximizing the efficiency of the state — of its ability to get done what most people wanted done as fast and cheaply as possible. They already knew that the most efficient state, that accomplishes the will of the majority most quickly, is a tyranny. (It’s a common and comforting delusion that a tyranny thwarts the will of the majority. A moment’s thought reveals this to be false: a tyrant cannot survive for long if he does not represent the majority.) They had no wish to live in such a state, and their goal was to achieve acceptable levels of efficiency, so that the United States could fend of domination by European powers, while preserving the chaotic liberty-preserving heterogeneity it already had.
Carl, could you support your argument with text from the Constitution? I did — Article 5 lets the constitution be changed to say anything if certain cumbersome procedures are followed. Those procedures attempted to make sure no state or small group of states got the upper hand, and they attempted to ensure that a rough majority of the citizens were in favor of a change, but they do nothing to ensure, as you suggest, that no philosophy gets the upper hand. The first amendment addresses the freedom to have philosophical diversity, but it doesn’t especially encourage it and the rest of the constitution doesn’t address philosophies either, iirc.
We do seem to agree that the founders wanted the constitution to slow down democracy.
To those that say “it is only a tax”:
Would it be constitutional to have an additional tax for everyone that engages in homosexual behavior? Would that still be “only a tax”? What if it was only a tax rebate for not engaging in homosexual behavior?
Would it be constitutional to give all church attendees a special tax rebate? What about all gun owners?
Are you certain that you want this door opened?
Congress can’t pass laws that violate the Bill of Rights. For example, if you refuse health care coverage on religious grounds, you can get an exemption.
Congress can’t ban the sale of alcohol – that took a Constitutional amendment.
Congress can’t make me buy a car – it is a market that I can chose (or not) to enter. They can’t make me buy certain foods. (Actually, it’s unenforceable under the 4th and 5th Amendments, and the much-derided “privacy right” of Roe V. Wade.)
Congress can’t make me actually get health care. They can (and have) said that, unless I can guarantee that I’ll not be entering the health care market, I have to pay into the market. But if I actually want to die vs. see a doctor, I’m free to do so.
David – homosexual behavior isn’t economic. Ditto going to church. Regarding owning guns, since every adult male is technically part of the militia, yes they could actually require you to buy a gun.
Bob, you are certainly correct that the Federal government can do — future tense — anything if the Constitution is first amended to allow it. But the question was whether the government can do — present tense — anything given the Constitution as it exists right now. The answer is no. Your argument to the contrary is sophistical, and relies on a (deliberate, I assume) elision of the distinction between present and future.
We do seem to agree that the founders wanted the constitution to slow down democracy.
No we do not. The Constitution was designed to prohibit democracy, i.e. the direct rule of the majority. Clear now?
There is, as many people have pointed out, absolutely no need for or purpose of a written constitution if you wish to implement a democracy. You only need a written agreement of limitations on your popularly-elected government if you wish to constrain that government.
Please do not argue that since the Constitution was framed by the people (and can be modified by them) the form of government it sets up must necessarily be a democracy. That’s absurd. The people are perfectly capable of voting in a tyranny — it has happened many times throughout history — and reserving to themselves the right to alter it in the future, if in no other way than through violent revolution. No one denies the ultimate sovereignty lies with the people. But that is not equivalent to a “democracy.”
I’m reminded by a left-wing site of all sorts of non-economic activity beyond Congress’s purview. Specifically, local law enforcement matters, like gun-free zones (and gun-carry laws in general) and criminal investigations.
So we may assume, Chris, that at the time (1994) you were opposed to the Violence Against Women Act on constitutional grounds?
Or is this one of those “Reagan” moments, where the left praises the dead conservatives of the past, and denies paternity of the failed and futile statist policies it once held dear (assault weapons bans, NIRA, detente, “hate crimes” legislation, et cetera)?
Can we expect that once the individual mandate has proven a flop with both SCOTUS and the voters, you’ll tell us you always knew it was unconstitutional, but the next lovely scheme for Solving All Problems from the central command post in D.C. will, of course, be different?
Carl Pham – I am actually a member of the NRA and a gun owner. I was always against the “assault weapon” ban, and am in favor of shall issue concealed-carry laws.
I don’t recall having an opinion on the VAW Act in 1994. Saying it’s unconstitutional to force local police to investigate crimes (which is what I think the gist of the ruling is) seems counter-intuitive, but legally required on Federalist grounds.
Since I voted for Reagan and Bush 41, the later while on active duty in the USN, I guess I’m against detente.
I’m honestly not a fan of the individual mandate. I’d rather we had a public option that one could opt out of, or if you wanted to stay in, use as a base to add supplimental coverage to. But since I’ve been repeatedly told that’s Even More Evil Than Evil Itself ™ I’ll defend the alternative.
Chris,
Why can’t Congress violate the Bill of Rights, but can violate the very Constitution that was used to enact the Bill of Rights? Because the Constitution is pretty clear about what is within Congress’ purview.
Also, don’t forget that the Bill of Rights includes the 9th and 10th Amendments, not just the 1st through 8th. What do those Amendments protect, in your opinion? What did they protect when they were written (not just since recent Supreme Court decisions like Raich).
You beat me to it.
Chris: “Congress can’t pass laws that violate the Bill of Rights. ” <—What about the 10th? Why did we have to pass an Amendment to allow the taxation of income, but don't have to pass one to force (specifically, at the federal level!) all citizens to purchase whatever goods and services that Congress (or bureaucracies empowered by Congress) shall dictate?
I’ve never seen anything like Bob-1 arguing that the constitution allows the government to do anything because the constitution provides for being amended. That’s awesome. I mean, if we just amended the constitution to null the first 10 or so amendments we could have a crime free society, get rid of those pesky religious nuts, and nobody would have guns to stop us. It would be awesome!
I think instead of “slow down democracy”, “prevent tyranny, and fix any holes in the system” fits better with my reading of history.
Big D – the Commerce Clause grants Congress specific power regarding interstate commerce. It’s not an unenumerated power under the 9th or reserved under the 10th.
Look, I’m sorry that a mechanized nation of 300 million has a lot more interstate commerce than a nation of 2 million moving on horseback. If you want to go back to horse and buggy days, be my guest.
It’s not an unenumerated power
Actually, that’s exactly what the Commerce Clause has become and why it should be struck from the constitution.