The authors of the Constitution sought to create a government that would do only what was necessary for a government to do and that would respect individual rights in the doing. What they wrote was flawed in many ways, most notably in its sanctioning of slavery. Yet, though that resulted in civil war, neither it nor the other flaws in the Constitution doomed America. It was trust that the courts would properly interpret the Constitution that sealed America’s fate.
The Constitution expresses what the government may do by stating its various powers. So, for example, “The Congress shall have power to lay and collect taxes”. It sometimes limits the powers, as in, “No tax … shall be laid on articles exported from any state.” However, the Constitution is almost mute as to what the government may use its powers for. Although the Constitution’s authors had definite ideas about that, the courts care little what they intended or even whether the government uses its powers for legitimate purposes.
It’s been that way pretty much from the beginning. For example, there was a case back in 1824, Gibbons v. Ogden, that concerned the limits of Congress’ power to regulate interstate commerce. The particulars of the case are dead history but part of the Supreme Court’s reasoning is profoundly important. The Court reasoned that the authors of the Constitution expressed themselves fully in the words of the Constitution and thus that the only limits to the government’s powers are those found in the text of the Constitution. The government could use its powers for good or for evil, without regard for their intended purposes, and the only check on government misuse of its powers was to be found at the ballot box. In contrast to the Court’s rejection of external limits to the powers granted to the government, the Court has elsewhere eagerly embraced extra-Constitutional limits to the rights protected by the Constitution.
Gibbons remains the law of the land, with predictably awful consequences. In the 1942 case of Wickard v. Filburn, the Supreme Court ruled that Congress could tell a farmer that he could not feed wheat he’d grown on his own farm to his own farm animals, on the ground that doing so could affect interstate commerce. And in the 2005 case of Gonzales v. Raich, the Supreme Court ruled that Congress could forbid the purely intrastate use of marijuana for medical purposes, applying the reasoning of Gibbons and Wickard. What’s truly revolting is that the Supreme Court observed that medical marijuana could save lives—and this fact played absolutely no part in the Court’s reasoning.
In today’s highly interconnected world, most activities affect interstate commerce and so fall under the government’s power to regulate interstate commerce. In combination with the government’s other powers, notably the virtually unlimited power to tax, essentially every aspect of American life is subject to some kind of government control. The Constitution’s authors may have intended a limited government that protected individual rights but what America now has is Leviathan.
It is easy and proper to blame Leviathan on those in government who rejected limited government and individual rights. Yet, as the Supreme Court said, the American people have the power to restrain their government. They chose not to. Instead, they demanded that the government take on burden after burden, and ceded right after right that the government said (usually correctly) it had to abrogate if it was to carry those burdens. How did this come to pass?
The Constitution’s authors understood rights as limits on government action. However, historically speaking, the ink was barely dry on the Constitution when a new kind of right was invented. The American people decided that they were entitled as individuals to goods and services that were not earned by their own efforts. Of course, it would not do for each person to decide what he was entitled to and take it; that would be theft. Instead, the government was given the jobs of deciding who was entitled to what and of expropriating what was necessary to provide the entitlements.
Americans demanded ever more and diverse entitlements and, today, most people believe that government should provide anything a person might need. Today’s political fights are mostly over what qualifies as a need and how the needs should be met. Politics has ceased to be about solving the problems of the polity; it has become the whining of children demanding their turn at the public teat and the wails of those sacrificed to the public’s gluttony. No matter how principled, politicians have had to become panderers—today, most are proud to be—pimping the government to obtain votes. And the courts, having abandoned their responsibility to apply the principles of limited government and individual rights when interpreting the Constitution, play Pilate to the demands of the people.
It is easy to see where the voracious demand for entitlements will take America. The signs are visible today. Entitlements continue to grow. As people complain about taxes, the government cuts corners on the entitlements it provides directly and compels the private sector to provide others. Entitlements are “paid for” by borrowing, inflation, and neglecting the legitimate purposes of government. Expropriation and regulation sap productivity. The government and the public engage in massive denial. And then….
One day, America wakes up to a government that can’t pay its bills. So, it prints money—hello, hyper-inflation. The private sector is also tapped out—and can’t even print money. Those who depended on entitlements have to hope for charity—from those barely able to survive, much less support hordes of parasites. Far too many people, steeped in the belief that they are entitled to that which they did not earn and who therefore never learned how to earn those things, latch onto some con man who promises to give them what they demand. We’ve seen this movie before, in many variations…what comes after will not be America, no matter what it is called.
And that is an optimistic scenario.
Americans could reject en mass the idea of entitlements and demand of each person that he be responsible for himself or suffer the consequences. Elected officials—and several of their successors—could commit political suicide by refusing to perpetuate the entitlement society. Or, the Supreme Court could do an about-face that would require dismantling most of the government. None of these have any reasonable chance of happening, so America cannot escape its fate.
It is no news that the public is swayed by passion and desire. To give it absolute power would mean a society enslaved by whim. Elected officials, acting within the limits imposed by a constitution, should damp the public’s excesses. Yet, to get elected, those officials must heed the public’s demands, even the illegitimate ones. In the interplay between electorate and elected, abstract principles take a back seat to passion and desire. Courts, isolated from politics, are the reflective mind that should ensure that principle is not sacrificed to exigency.
The American courts abandoned that essential function. That left no part of the government able to curb abuses of power instigated by, approved of, or tolerated by the public. Such abuses were then inevitable. The cancer of entitlements will kill America but the mutation that allows this disease to flourish is the courts’ abandonment of a principled interpretation of the Constitution.
Bill Wells 