Ron Paul on the General Welfare Clause
Now that Rep. Ron Paul is again a presidential candidate, his constitutional views will come under increasing scrutiny, as happened yesterday when he was interviewed by Chris Wallace on Fox News Sunday. Not surprisingly, critics immediately leapt on Paul’s “crankish view” that Social Security, Medicare, and other such programs are unconstitutional. Even Wallace seemed taken aback, citing the document’s General Welfare Clause:
The Congress shall have the Power to lay and collect Taxes … to pay the Debts and provide for the common Defence and general Welfare of the United States.
“Doesn’t Social Security come under promoting the general welfare of the United States?” Wallace asked, incredulously.
One does not have to agree with everything Paul has said or stood for over the years to grant that he has a point, and a very important one. It’s a mark of how widespread our constitutional misunderstanding is that so many Americans take it for granted, at least until the Tea Party came along, that most of what the federal government does today is constitutional.
In a nutshell, the Constitution was written and ratified to both authorize and limit the government created through it. It was designed to do the latter not through the Bill of Rights — that was an afterthought, added two years later — but through the doctrine of enumerated powers. Article I, section 8, grants the Congress only 18 powers. Nothing for education, or retirement security, or health care: Those responsibilities were left to the states or to the people, as the Tenth Amendment makes clear.
So what about the General Welfare Clause, the first of Congress’s 18 powers? To be sure, the clause was inartfully drafted, like several other provisions in the Constitution. But it was understood by nearly all as granting Congress the power simply to tax (in limited ways: see the full text). The terms “common Defence” and “general Welfare” were meant merely as general headings under which the 17 other specific powers or ends were subsumed.
In fact, the question came up almost immediately, during the ratification debates, and in early Congresses as well, so we have a rich record of just what the General Welfare Clause meant. Here, for example, in Federalist #41, is James Madison, the principal author of the Constitution:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction…. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it…. But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?
Indeed, as was often asked: What was the point of enumerating the 17 other powers if Congress could do anything it wanted under this single power? The Framers could have stopped right there. They didn’t because they meant for Congress to have only certain limited powers, each one enumerated in Article I, section 8. And taxing for the general welfare limited Congress even further by precluding it from providing for special parties or interests.
Nor does it change anything to note, as Wallace did yesterday, that the Supreme Court upheld the Social Security Act in 1937 — as if that settled the question. As a practical matter it settled things, of course, just as Plessy v. Ferguson settled the “separate-but-equal” issue in 1896, only to be reversed in Brown v. Board of Education in 1954, and Bowers v. Hardwick settled the issue of homosexual sodomy in 1986, only to be reversed in Lawrence v. Texas in 2003. It’s well understood that the 1937 Court, cowed by Franklin Roosevelt’s infamous Court-packing threat, simply reversed 150 years of understanding and precedent concerning the doctrine of enumerated powers. And that removed the Constitution’s main restraint on federal power — not by constitutional amendment but by judicial fiat.
But it’s not been “extreme liberals” alone, Wallace went on to say, who’ve read the Constitution as the 1937 Court did, noting that conservative Justice Antonin Scalia recently told a congressional gathering: “It’s up to Congress how you want to appropriate, basically.” To be sure, from fear over “judicial activism,” many conservative judges have bought into the New Deal’s constitutional revolution. Perhaps the most that can be said on their side is that the Court cannot alone, this late in the day, reverse these mistakes.
In fact, this unconstitutionality cannot be undone overnight even by the Congress. Here again there are practical concerns, as Paul has recognized. Vast numbers of people have come to rely on these welfare schemes, however unsustainable they are in the long run, as has become increasingly clear. If constitutional fidelity can serve to spur fiscal discipline, however, we may yet slowly work our way out of our present and long-term fiscal dilemma. But that felicitous result will not happen until we admit both our infidelity and our indiscipline — the two are intimately connected.
By reading the General Welfare Clause in isolation, therefore, Wallace and others turn the Constitution on its head. Rather than a document aimed at limiting government, it becomes a document authorizing unlimited government. And let’s be clear: The basic issue here is nothing more — nor less — than legitimacy. Do we live under the Constitution, or don’t we? If Ron Paul’s views on this fundamental question are “cranky,” so too were those of Madison, Jefferson, Washington, and the rest of the Founders we revere.
Julian Sanchez Talks Online Privacy on Monday, March 28 at 1pm ET on Facebook
Please join us this coming Monday, March 28 at 1pm Eastern on our Facebook page for a live video presentation, powered by Livestream, from Cato research fellow Julian Sanchez on the current state of online privacy policy.
Here is a brief list of topics he’ll cover:
- An update on current challenges to overturn FISA, and what it means for you and me if those challenges succeed or fail
- How this relates to current and recent efforts to reauthorize the Patriot Act, including a recap of testimony Sanchez recently delivered to the U.S. Senate Subcommittee on Crime, Terrorism, and Homeland Security
- What’s on the FBI’s surveillance wish list
- Reflections on the idea of an “online privacy bill of rights“
We hope you can join us next Monday at 1pm Eastern for this event. Be sure to log in to Livestream with your Facebook account so you can chat with each other and submit questions–we’ll try to take as many as we can.
Not a fan of the Cato Institute yet? Join us below:
My Favorite Constitutional Right
Both the Washington Post and NPR refer to the Tenth Amendment as a “tea party favorite.” I would have thought that tea partiers — and most of the rest of us — liked all 10 of the Bill of Rights, and indeed the rest of the Constitution as well. Now, sure, I guess if the ACLU could publish (in the 1970s or 1980s) the poster below, an “illustrated guide to the Bill of Rights” featuring only the First, Fourth, Fifth, Sixth, Eighth amendments (and only parts of those), along with the Fourteenth, Fifteenth, and Nineteenth amendments, which are not part of the Bill of Rights — well, then, I guess the Tea Party is entitled to have its own favorite parts of the Bill of Rights. But then, it was NPR and the Washington Post, not tea partiers, who suggested that the Tenth Amendment was perhaps uniquely a “tea party favorite.” I would urge the ACLU, the Tea Party, and all other Americans who care about freedom to consider the entire Constitution a “favorite.” Of course, the Tenth Amendment is pretty crucial, reminding policymakers that the federal government does not have any powers not delegated to it in the Constitution.
Two Cheers for the Bill of Rights!
As Tim Lynch has already blogged — and as Cato is currently featuring on its front page, today is Bill of Rights Day. But of course, this is less of a big deal than Constitution Day (September 17, when we release the Cato Supreme Court Review at an annual conference) — because the Bill of Rights is essentially redundant of the Constitution’s original structural protections: Whenever the government exceeds its constitutionally granted powers, it violates rights of some sort.
Tim Sandefur explains over at the Pacific Legal Foundation’s blog:
Madison, along with his colleagues like James Wilson, Alexander Hamilton, and others, expected the Constitution to give Congress only a limited set of powers—powers that were listed in the text of the document. If it wasn’t listed in the text, then Congress couldn’t do it. So the federal government could collect taxes or run a post office, but it couldn’t do other things—like run a national health care program, for instance. Since Congress’s powers were, in Madison’s words, “few and defined,” there was no need to add a bill of rights to declare that the federal government couldn’t do such-and-such, because they already couldn’t do such-and-such.
Indeed, the argument went, if you enumerate various rights, some will later claim that this is an exhaustive list – even though it’s impossible to list all of our rights at every conceivable level of specificity – with everything else subject to state regulation and control and perhaps implied powers too. That concern is why, even though Jefferson and others won the debate over whether to have a bill of rights, Madison and others ensured that the Ninth Amendment would be included as a safeguard against those who would “deny or disparage” other rights that are “retained by the people.” And why the Tenth Amendment reiterated that, conversely, the powers “not delegated to the United States” are “reserved to the States respectively, or to the people.”
We’re fortunate that both Jefferson and Madison got their way because, as we’ve seen over the last 70+ years, the Supreme Court read out of the Constitution the structural protections for liberty that are plainly there in the pre-amended Constitution. Not that the Court has done a very good job on the “rights” side of the coin, either — think eminent domain abuses (earlier this week it denied cert. in the Columbia University case, by the way), or the Second Amendment before Heller, or, perhaps most infamously, economic liberties since the rights bifurcation of 1937′s Carolene Products footnote 4 – but if it weren’t for these little bones that it has thrown our way, why the government would always be the sole judge of its own powers. (Which, of course, is what Obamacare proponents argue, that the check on Congress’s power is purely political.)
In any event, bully for the Bill of Rights, even if it’s not — as many people think — the most important part of the Constitution.
Constitution Day
On September 17, 1787, the Framers of the Constitution of the United States of America, having completed their work over that long hot summer, sent the document out to the states with the hope that conventions in the states, pursuant to Article VII, would see fit to ratify it. Nine months later, on June 21, 1788, New Hampshire became the ninth state to do so, making the Constitution effective between those states. Shortly thereafter, three more states ratified the document; and Rhode Island, the last, did so on May 29, 1790.
The Constitution was not perfect – what human creation is? – not least in its oblique recognition of slavery, believed necessary to ensure union. But it provided for amendment, as with the addition of the Bill of Rights in 1791 and the Civil War Amendments several decades later, which ended slavery and brought the Bill of Rights to bear upon the states. All things considered, especially when we look at the rest of the world, the Constitution has served us well, enabling us to prosper in greater freedom than most have ever enjoyed.
Over the past century, however, we’ve allowed governments at all levels to grow far more than the Framers ever would have imagined the Constitution allowed, until today the modern redistributive and regulatory state is everywhere upon us. James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be “few and defined,” leaving us largely free to plan and live our own lives. If we’re to restore that Constitution of limited government, it will take more than courts and “politics as usual” to do so. We’ve got to take the Constitution seriously not just on Constitution Day but on every day. Fortunately, there are stirrings in the nation today that suggest that ever more Americans are doing so. Thomas Jefferson said it best: “Eternal vigilance is the price of liberty.”
Liberty Requires Risk
That’s the message of my recent op-ed in the Daily Caller. New York City Mayor Michael Bloomberg’s initial reaction to the McDonald v. City of Chicago decision was to say that McDonald would have no impact on government’s ability to keep guns “out of the hands of criminals and terrorists.” This was a reference to legislation that Bloomberg supports that would allow the federal government to bar anyone the Attorney General thinks is a terrorist from purchasing a firearm. Not convicted of a crime in support of terrorism — that would make them a felon and already unable to purchase or own a firearm. No, being suspected of activity in support of or preparation for terrorism means you get the same treatment as if you were a convicted felon or had been involuntarily committed to a mental institution. So much for due process.
While D.C. v. Heller is the relevant decision (the AG’s double secret probation list is a federal, not state action), the premise of this legislation needs to be refuted. The proposition that guns and gun ownership are uniquely dangerous such that the right to keep and bear arms must be treated as a second-class provision of the Bill of Rights is willfully blind of the other instances where society accepts risk by safeguarding liberty in the face of foreseeable hazards. Justice Stephen Breyer embraced this misguided concept –– that the right to keep and bear arms is an enumerated, but non-fundamental, right that deserves a lesser degree of protection than the rest of the provisions of the Bill of Rights — in his McDonald dissent.
I counter that notion in this podcast:
Related thoughts from Ilya Somin here.
Democrats, Kagan, and the Second Amendment
Today Politico Arena asks:
What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?
My response:
The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.
And that issue will arise in the Kagan hearings, given some of her past statements about the Second Amendment. Will it block her confirmation? Probably not, given the numbers. But the discussion should illuminate the issue for the voters, and that’s good.
Citizen Shahzad
Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad. First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights. In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.
Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:
“Did they Mirandize him? I know he’s an American citizen but still,” King said.
Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.
From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups. The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group? As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime. If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”
Democracy against Free Speech?
A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.
Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.
I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).
The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.
Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:
- Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
- 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
- 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
- 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
- majorities thought “the government should be allowed to require television and radio broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
- That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.
In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.
These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.
The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.
Bill of Rights Day
Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.
Let’s consider each amendment in turn.
The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election. They also insist upon gag orders in thousands of federal investigations.
The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.
The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.
The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.
The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.
Hurting the Sick Is Not Good Politics
I was glad to see James Pinkerton engage my criticism of Louisiana Gov. Bobby Jindal’s (R) endorsement of federal price controls for health insurance. I was even more pleased to see that Pinkerton has his own blog devoted to developing a Serious Medicine Strategy.
If I understand Pinkerton, his argument is essentially: it’s all well and good for some unelectable wonk in the “citadel of libertarian thinking” to “uphold ivory-tower free-market purity” by opposing price controls. But Republicans need “art-of-the-possible solutions” to win elections, and 90 percent of the public support those price controls. “Everyone has a right to his or her principled position,” Pinkerton writes, “but the majority has rights, too.”
Two problems.
First, Pinkerton suggests that libertarians oppose price controls for reasons that only matter to libertarians, and therefore may be safely ignored. Problem is, price controls hurt people. Were Pinkerton to explore the merits of Jindal’s proposal, he would soon conclude that imposing price controls on health insurance taxes the healthy, reduces everyone’s health insurance choices, and creates even greater incentives for insurers to shortchange the sick. (Turns out that what Larry Summers said about price controls applies to health insurance, too.) As John Cochrane explains, those price controls also block innovative products that would provide more financial security and better medical care to the sick.
But Pinkerton’s advice for Republicans is, essentially: “Do what’s popular now, even if it hurts people and voters end up blaming Republicans for it later.” How is that a good strategy?
Second is this idea that “the majority has rights.” Majorities don’t have rights. Individuals have rights. For example, you have the right to negotiate the terms of your health insurance contract with the individuals at this or that insurance company. Majorities may attain power, but that’s the opposite of rights. (See the Bill of Rights.)
Finally, a couple of important odds and ends. Pinkerton suggests it is “un-libertarian” to be “pro-life,” or to “support the police, the military, and other upholders of public order,” or to “support government restrictions on…euthanasia.” Writing from the “citadel of libertarian thinking,” I can assure him he is wrong. Might I suggest Pinkerton read the relevant chapters from The Encyclopedia of Libertarianism? (The health care chapter is a page-turner!) Also, I did not “denounce Jindal” any more than Pinkerton denounced me. I criticized his ideas, and I respect the man.
(Cross-posted at Politico‘s Health Care Arena.)
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