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In praise of the Enumerated Powers Act
W. James Antle III
The genius of the American founding was its division of power among distinct branches of government and between federal and state governments. This effort to avoid centralized power would help protect freedom and promote a climate in which the creative spirits of a vast continental nation could flourish. Needless to say, this republic's experiment in ordered liberty is threatened by the prevailing attitude of the ruling class that no problem is too large or small to be solved by passing a new law.
Hardly a topic is considered to be outside of Congress' purview. It is considered entirely appropriate to have federal legislation dealing with such mundane matters as a local school's classroom sizes or the amount of water held in a toilet tank. Congress spends citizens' tax dollars on bicycle trails, studies on fruit flies and cow flatulence, after-school sporting events, corporate advertising campaigns abroad, buildings in key members' congressional districts and subsidies for mohair. The federal government is involved in many aspects of life: Arts, entertainment, health care, education and the minutest details of workplace conditions. Neither federalism, the Founders' cherished division of government power, nor subsidiarity, the principle that problems are best solved by the level of civil authority closest to them, deters expansions of federal power whenever some real or perceived crisis occurs.
Try to imagine a school shooting, or an unexplained epidemic of building fires, or disturbing new trends in health news that did not invite calls for federal action. Be it an alarming study or a widely shared frustration, if it can be described as a problem (ranging from the prohibitive price of rock concert tickets to the outbreak of mad cow disease) someone will call on the federal government to get involved and someone in Congress will hold hearings or try to pass a law. If anyone objects on the grounds that the federal government should not be involved in such matters, they will be reprimanded for their lack of caring and compassion. It won't be long before Congress passes laws to make it easier to find the prize in a box of Cracker Jacks or keep the neighbor's cocker spaniel out of your rose garden.
It takes great imagination to reconcile the current state of affairs with the Founding Fathers' intentions. Our government is supposed to be limited by the written law, rooted in the Constitution, and by constitutionally enshrined checks and balances. Just as sporting events are governed by rules, the federal government is supposed to operate within the strictures of the Constitution. Even if many abuses of government power are benign or merely annoying, the principle of limited government is an important guarantee of liberty. Legislators who can impose whatever laws they choose on the general population but are not bound by law themselves are entrusted with an unsafe amount of power that is sure to breed corruption.
Rep. John Shadegg (R-Ariz.) is working to reestablish the principle of constitutional, and thus lawful, government. To this end, he has introduced the Enumerated Powers Act. This modest but important legislation would require each bill being entertained by Congress to contain a concise summary of its constitutional justification before it can be voted on. Each relevant section of the act would have to contain an explanation of where in the Constitution Congress was granted constitutional authority to legislate in the manner the bill prescribes.
Since each member of Congress takes an oath to uphold the Constitution, you would think they would all be eager to support this legislation. After all, is it not important to obey the Constitution and be able to convey to the American people the constitutionality of congressional actions?
Doesn't this bill make it easier for members of Congress to abide by their oaths of office? Alas, members are not jumping up and down to bring this legislation to the floor. This bill is as popular among believers in big government as Marilyn Manson in Branson, Missouri. Its co-sponsors are limited to the typical champions of constitutional principle and conservative conscience, fellows like Reps. Ron Paul (R-Tex.), Phil Crane (R-Ill.), John Doolittle (R-CA), Lamar Smith (R-Tex.) and Roscoe Bartlett (R-MD).
Shadegg, who has filed this bill in every session since being elected to Congress, is undeterred. He recognizes that an effective but limited government depends on adherence to the Constitution, which confers a grant of specific rather than innumerable powers to Congress. A political structure that is not based on observable, neutral rules and predictable government activity is incompatible with the rule of law. A federal government that exceeds its constitutionally enumerated powers creates such a lawless structure.
"This measure will force a re-examination of the role of the national government and will fundamentally alter the ever-growing reach of the federal government," Shadegg says of his bill. "For too long, the federal government has operated without constitutional restraint, only limiting itself by budgetary concerns." In the era of large budget surpluses, this is a dangerous reality. It is tempting to continue to expand the powers of the federal government, forgetting both the long-term impact on public finances when this brings back budget deficits and the potential consequences for personal freedom. Shadegg believes his bill would help: "The Enumerated Powers Act will help slow the flood of unconstitutional legislation while assisting Congress in its re-evaluation of the proper role of government."
The Enumerated Powers Act is not a panacea and would not return us to limited government according to the Constitution overnight. Shadegg succeeded in getting a version of his bill's requirements codified in the House of Representatives' rules during the 105th Congress, yet bad bills and large spending increases continue to pass in that chamber. Most legislators simply cite the general welfare and interstate commerce clauses in pushing through their pet legislation, creating a Constitution unrecognizable to its Framers and in stark contrast with the Federalist Papers. Nevertheless, this legislation would be helpful if only as an illustration of the shallow constitutional reasoning behind most legislation. The poor rationales and obvious distortions of the Constitution's plain meaning that this act would bring forth would demonstrate Congress' constitutional bankruptcy.
Many Americans no longer realize that the Constitution is intended to limit government and that the Bill of Rights is not intended to be an exhaustive list. This bill would remind them of the existence of enumerated powers and force members of Congress to confront these enumerated powers each time they craft legislation. Many conservatives who have difficulty remembering that every problem does not require a federal law as its solution may find their consciences stirred by this experience. If nothing else, the verbal struggle between the Constitution and the messianic legislative impulse of the modern American welfare state would be instructive.
The publishers of the popular conservative e-journal The Federalist go even further in their New Federalist platform. They propose that before a bill can come to a vote a majority in that chamber would have to sign a Constitutional Authorization Report explaining why the legislation under discussion is constitutional. This would force a majority of Congress to not only decide whether to vote for unconstitutional legislation, but go on record as explaining and defending its constitutionality. The tortured reasoning this will require in the case of some blatantly unconstitutional legislation may be more than some of them can take.
Simply reintroducing the concept of enumerated powers to the American people would give the lie to those who claim to venerate the Constitution but in practice reject its authority. So-called constitutional law experts who pretend there are no concrete limits on the federal government besides being involved in Christmas displays would be put on the defensive, as this bill shows them to be undermining the very basis of their discipline. Constitutionalists will be emboldened to debate the constitutionality of legislative proposals and in the process dust off the Tenth Amendment.
It is rare that legislation is introduced in Congress with the intention of limiting government and defending the Constitution. Rep. Shadegg's bill does both, and even if it is only a small step in the right direction, the Enumerated Powers Act deserves passage. We the people should consider its enactment Congress' constitutional duty.
W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. You can e-mail comments to firstname.lastname@example.org.
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