Is the Constitution ignored?

By W. James Antle III
web posted November 20, 2000

Sen. John Ashcroft's loss to a dead man in the Missouri Senate race may have cost us one important national conservative leader for the next legislative session, but perhaps the election of Republican John Ensign to the Senate from Nevada will gain us another.

John Ensign

Ensign came under fire during the last campaign, his second run for the Senate following a wafer-thin loss to Sen. Harry Reid in 1998, for asserting that most of the present activities of the federal government were unconstitutional. This is something that candidates for federal office are not supposed to say, and most Republicans obligingly don't. Predictably, Ensign was taken to task for his "extremism," as well as his "inflammatory" rhetoric and pandering to the "black helicopter set."

As a simple matter of fact, Ensign's statement was plainly true. The Constitution clearly enumerates the powers of the federal government, including the specific areas within Congress' legislative parameter. The Bill of Rights concludes with the Ninth Amendment, stating "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people," and the Tenth Amendment, reading "The powers not delegated by the Constitution to the United States, nor prohibited by it to the states, are reserved to the states respectively or to the people."

This is an unmistakable and unequivocal statement that the federal government only legally exercises those powers assigned to it by the Constitution.

Yet scan the Constitution as you will, and you will be hard-pressed to find any text giving Congress the authority to build schools, determine what shall be taught in them or regulate class size. There is no provision granting the federal government the authority to fund a vast array of social services including midnight basketball, jobs programs and subsidies for out-of-wedlock births. The president is not supposed to unilaterally commit US troops to invade and bomb foreign countries that have not attacked us without a constitutionally mandated congressional declaration of war.

Nowhere in the Constitution is the federal government given express permission to require nearly every American citizen to participate in a collective insurance program, which is federally administered, that will pay for their retirement and old-age health benefits through special tax revenues. Nevertheless, this is precisely what Social Security and Medicare are, and these two entitlement programs account for nearly 60 percent of federal spending.

Over the course of the presidential campaign, both major-party candidates heaped praise on Alan Greenspan and the Federal Reserve for its work in stifling inflation and thus insuring our economic growth. Yet the Constitution gives Congress the authority to control the money supply, not the Federal Reserve. In fact, there is no constitutional reason for the Federal Reserve to exist. (It is debatable whether there is a valid economic reason either.) Both candidates also endorsed the idea that our international trade policy should be subject to the review of an international body called the World Trade Organization, despite the constitutional requirement that Congress regulate trade. Absent a constitutional amendment, Congress cannot transfer its functions and responsibilities to other entities.

Space doesn't even permit the judicial usurpations of power that were never even anticipated by the Framers much less authorized by the Constitution. We have even gotten to the point where courts may replace the Electoral College in selecting a president, if some politicians who are less than enamored with constitutional government and the rule of law have their way.

Both parties tacitly assume that any problem that seems to worry a large number of voters, no matter the subject, is an appropriate area for federal intervention regardless of what the Constitution says. The Constitution was not intended to be an exhaustive laundry list of potential solutions for problems. It was supposed to set limits on federal power and divide powers throughout the republic to protect individual liberties and avoid tyranny. An amendment process was conceived to address changing circumstances and unanticipated needs, but not to usher in limitless government. The Founding Fathers knew that an autonomous government brought its own problems, which they were eager to avoid.

Since FDR's presidency, the Constitution has functioned less as a limit on the federal government than a set of procedural guidelines for the implementation of the liberal agenda. In order to make this so, liberals have had to pervert the words of the Constitution and distort their historical meaning to circumvent the strict limits it imposes on government power. They are forced to pretend their unconstitutional acts actually represent the "growth" of a Constitution that is a "living document." Syndicated columnist Joseph Sobran put it rather well: "Now whatever you think of the liberal agenda on its merits, until very recently nobody thought the Constitution meant what liberals now say it means." This includes the people who actually wrote the Constitution, which raises the question of whether we can truly have constitutions and laws if they can be interpreted to mean something completely different than what the people who framed them intended.

John Ensign therefore is someone truly committed to a valuable proposition all senators at least pretend to assent to: That the Constitution is the law of the land, governing not the conduct of citizens but of those who would be rulers. This belief is a fundamental aspect of the most authentic conservatism, one we should be happy to have a newly elected Sen. Ensign to fight for upon assuming office in January 2001.

W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. You can e-mail comments to

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