How the federal government go too much power, and why it must be taken back
The Constitution creates a government of enumerated powers, which means the federal government is only authorized to do things that are specifically listed in the Constitution
A dispute over a farmer’s right to decide what to do with 12 acres of his own wheat led to nearly unlimited federal power being awarded to the executive and legislative branches by a 1942 Supreme Court decision. (Photo: Cleveland Plain-Dealer archive)
Every presidential election in the United States follows a clear formula. First, many people with absolutely no chance of winning the presidency declare their candidacies. Those who get washed out of the race late in the game see their fortunes rise, which was their goal from the first.
Second, candidates with even a chance at winning their party’s nomination drift to the outer fringe of their party’s ideology. For Democrats last year, that means appealing to the most progressive of the progressive wing of their party. Finally, when the race is set with two candidates, each of them will converge in the middle, eschewing the more extreme ideological members of their own parties.
This is so common that every politically observant American is fully aware of what is happening. But this dyed-in-the-wool process obscures the most pernicious element of every presidential campaign, which sees both the candidates and the voters they hope to attract ignoring the Constitution at every turn. To the shame of both groups, they don’t even seem to realize what they’re doing.
Presidential candidates lay out their respective agendas, from Biden’s “build back better” nonsense, Bernie Sanders’s plan to move to single-payer health care to Donald Trump’s plan to complete the wall on our southern border and his desire to simplify government, to Elizabeth Warren’s plans for just about everything else no one else wanted to do.
The irony? Nearly all of these plans are unconstitutional twice over. Not only are presidents not given the authority to do these things, but the federal government itself is also not empowered to do these things.
The Constitution creates a government of enumerated powers, which means the federal government is only authorized to do things that are specifically listed in the Constitution. That list is relatively short. The list appears in Article One, Section Eight, which enumerates the proper objects of congressional legislation. Congress can:
Borrow money, coin money, regulate its value, and punish counterfeiters
Regulate commerce with foreign nations, among the states, and with Indian tribes
Establish rules for naturalization and bankruptcy
Establish Post Offices and Post Roads
Issue patents and copyrights
Establish courts inferior to the Supreme Court
Punish pirates
Suppress insurrections, repel invasions, declare war, raise an army, maintain a navy, and make rules for the army and navy
Organize the Militia (leaving to the states the appointment of officers and the authority of training the Militias)
Despite the enumerated powers that limit Congress and the presidency, the vague invocation of “interstate commerce” as an excuse has enabled both branches to expand federal power and authority. (Photo Illustration: ACV Images)
That’s it. This is all the Constitution permits the federal government to do. So we might ask ourselves, how does Congress, the president and especially the unelected bureaucrats in the multiple federal agencies exercise all that power to which they cling?
Consider the United States’ flirtation with Prohibition — which was enacted almost exactly 100 years ago. There is no doubt Prohibition worked. It changed Americans’ attitudes about drinking, deaths from liver disease and alcohol poisoning dropped precipitously and, when it was repealed, Prohibition had left its mark on our social and political mores.
Nonetheless, nowhere in the Article One, Section Eight powers does one see the authority to “ban the manufacture, transport, or sales of alcohol within the United States.” When Americans decided that they wanted a coast-to-coast ban on alcohol, they amended the Constitution to give the federal government this authority.
Fourteen dry years later, Americans decided enforcement under the Eighteenth Amendment had become impossible and revoked this authority by amending the Constitution again. The Twenty-First Amendment was the only amendment ever ratified for the purpose of undoing a previous amendment. But notice the difficulties that honest people faced when trying to accomplish a pervasive political goal.
As of 1933, when the Twenty-First Amendment was ratified, Americans still had a constitutionally limited federal government and what Justice Louis Brandeis famously called “laboratories of democracy” in the states. The purpose of limiting the federal government’s authority so severely was to put the lion’s share of governance in state hands. Each state would govern somewhat differently and, in so doing, the nation would be a huge experiment in democracy.
States that governed well would gain businesses and population. States that governed poorly would lose. By observing what other states did well, each state could learn how to govern better. By losing businesses and population, each state would have an incentive to act on what it learned. The “laboratories of democracy” brought to Americans’ political lives what market competition brought to their economic lives.
It should come as no surprise that a branch of the federal government — SCOTUS, in this case — has repeatedly ruled so as to expand federalism and further limit states’ rights. (Photo Illustration: ACV Images)
But who ended up being tasked with deciding what Article One, Section Eight actually meant? Herein lies the wrinkle that enables all manner of constitutional mischief in the United States. The institution that ended up deciding what the federal government is empowered to do is itself a branch of the federal government. It should therefore come as no surprise that when push comes to shove, the United States Supreme Court routinely finds in favor of empowering the federal government.
The sort of harm possible from this arrangement flowered fully in the decade following ratification of the Twenty-First Amendment. In 1942, the Supreme Court decided a case Wickard v. Filburn, in which Ohio farmer Roscoe Filburn ran afoul of a federal law that limited how much wheat he was allowed to grow in a single season.
A careful reader might, and should, ask where the federal government’s right to legislate the wheat market is to be found — because the word “wheat” is nowhere to be found in the Constitution. Be that as it may, the federal government’s aim was clear enough. It was to keep the price of wheat high enough for farmers to remain profitable. The Agricultural Adjustment Act of 1938 put an upper limit on how much wheat farmers were allowed to grow, which would serve to keep prices high by limiting supply. If this sounds like a vague form of socialist collectivism, you’re right.
Roscoe Filburn had grown 12 more acres of wheat than the law allowed. But not only did he not sell the excess wheat outside of his home state, he also didn’t sell it at all. He used the wheat from those 12 acres to feed his cattle. Filburn was very clearly not engaging in commerce, let alone interstate commerce, yet the Supreme Court unanimously found that because Congress had the authority to regulate interstate commerce, Congress also had the authority to prohibit Filburn from growing those 12 acres of wheat for his own use.
What in the Sam Hill (to quote a country saying) was the Supreme Court’s “reasoning”?
Had Filburn not fed his cattle that excess wheat, he would have been forced to purchase wheat on the open market. And even if he purchased wheat that was grown within his home state of Ohio, doing so would have made less wheat available within the state for other wheat buyers. Consequently, some wheat buyers within Ohio would then have had to buy wheat from outside the state. Therefore, Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce.
The mental gymnastics that went into this ruling could be construed to show that just about any activity was forevermore interstate commerce by definition. Since Wickard, any time Congress has wanted to exercise power not authorized by the Constitution, lawmakers have simply had to make an argument that links whatever they want to accomplish to interstate commerce.
Thanks to expanded federalism, unelected bureaucrats, nameless, faceless, denizens of government office building cubicles, govern us far more than our state legislatures do. (Photo: Jamie Choy/Stockphoto)
Why? That’s obvious: Because they know they can get away with it.
So today we have NASA, the FDA, the USDA, the EPA, federally subsidized student loans, Medicare, Medicaid, a federal minimum wage, and hundreds of other federal agencies, programs, and initiatives, all falling under “interstate commerce” as derived from a convoluted overreach of judicial malfeaseance. Some of these do, indeed, involve interstate commerce. Most do not. A century ago, we amended the Constitution when we wanted the federal government to exercise a new authority — that of banning alcohol — the authority expanded under Wickard v. Filburn and it became a self-perpetuating nightmare thereafter.
Today, we allow Congress to exercise almost any authority it likes. Further, we allow Congress to hand its authority over to unelected bureaucrats in unconstitutional federal agencies. Whereas regulating alcohol required amending the Constitution, regulating marijuana requires only legislation. Regulating prescription medicines requires only bureaucratic action.
We have progressed so far down the path of reinterpreting the Constitution as a document that empowers government, rather than one that limits it, that unelected bureaucrats today exercise power that the Constitution even withholds from Congress. This is troubling even when those bureaucrats are benevolent, altruistic, informed, and intelligent. When they aren’t — and seldom are they — it is extremely dangerous.
As if all that weren’t bad enough, we now have presidential candidates detailing their agendas to the voting public. If Congress, enabled by the Supreme Court, has overstepped its constitutional bounds, the presidency has eclipsed the very definition of the office.
The president heads the executive branch of government. Its role, by definition, is to execute the laws that Congress passes. Presidential candidates today, however, present themselves in legislative terms, detailing a jurisdictive agenda they have no constitutional authority to enact. They do this almost every time they offer a “plan” for anything, both before and after election.
Congress is charged with the legislative function, and this they are intended to exercise within a constitutional framework deliberately designed to make that job exceedingly difficult. Why were things designed this way? To limit the ability of the federal government to do much of anything without extremely broad support. This is what safeguards the rights of the individual.
That difficulty is what the Fascist Left Democrats in Congress are now trying to eliminate. They threaten to eliminate the 60-vote threshold that allows the minority to stall what it perceives as bad legislation, or using “budget reconciliation” to pass an unpopular or destructive spending bill where the filibuster would normally prevent such a bill from coming to a floor vote.
When Roscoe Filburn’s right to grow wheat on his own land to feed his own cattle was violated, everything since has largely been a foregone conclusion.
The sad result has been a government nearly limitless in its power. Sadder still is what this has done to our elections: Every four years, the American people ask candidates for more things neither the president nor Congress is constitutionally authorized to deliver. And this encourages a brand of candidate to run for office who is willing to ignore the Constitution in exchange for winning elections.
The first step to stopping this process lies in reading, understanding, and applying the Constitution of the United States. This means, first and foremost, placing the legislative function in the hands of Congress alone and taking seriously Article One, Section Eight.
It means, in short, limiting government again and returning the balance of power to the states, where the Tenth Amendment intends for it to be. It will not be possible under the current system. It will require term limits for Congress, elections that do not require billions of dollars to win and an honest media.
All of that requires an Article V Convention of States, with specific amendments approved by a two-thirds majority of states to be considered by a meeting of all the states, each one having but one vote on the final drafts of those amendments to be considered for ratification in the state legislatures.
An Article V Convention of States is our only hope. Otherwise, we will lose our democratic republic to the Fascist Left now in power.