In my Encyclopedia Britannica column this week, I take a look at “the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.”

Certainly they don’t always live up to those expectations, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. 

The column might have been more timely last summer, when Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

• Judge Martin L. C. Feldman, who blocked President Obama’s moratorium on oil drilling in the Gulf of Mexico;
• Judge Susan Bolton, who blocked Arizona’s restrictive immigration law;
• Judge Henry Hudson, who refused to dismiss Virginia’s challenge to the health care mandate; and
• Judge Vaughn Walker, who struck down California’s Proposition 8 banning gay marriage.

That was a good summer for judicial protection of liberty. But as I note, there have been more examples this year, reminding us of James Madison’s predictions that independent judges would be “an impenetrable bulwark against every assumption of power in the legislative or executive.”

How Judges Protect Liberty is a post from Cato @ Liberty - Cato Institute Blog

David Boaz’s post on bizarre and utterly preposterous claims that the federal government’s “social safety net” has been shrinking brought to my mind James Madison’s position that “Charity is no part of the legislative duty of the government.”

“The Father of the Constitution” wasn’t being cold-hearted when he took this position during a 1794 debate in the House of Representatives over federal aid to refugees. Rather, he was merely recognizing that “the government of the United States is a definite government, confined to specified objects.” Charity just wasn’t one of the specified objects. Of course, future politicians decided otherwise.

Today, most young Americans grow up in federally subsidized schools offering federally subsidized meals. They are inculcated to view the federal government as a benevolent caregiver that exists to provide Americans with housing, food, health care, and even income (to name just a few). Madison’s unfortunately quaint notion that the federal government isn’t supposed to be engaged in “charitable” activities would probably leave them dumbfounded.

I single out children because this week a private charity that I am involved with, the Purple Feet Foundation, is giving select inner-city sixth graders an opportunity to take hold of their futures now. Instead of promoting dependency, these kids will spend the week engaged in educational activities that will hopefully inspire them to utilize their individual talents to succeed in life. The Foundation does not seek, nor will it accept, taxpayer money. I believe this sets a good example for these kids.

Those of us who desire the limited federal government that Madison envisioned are often accused of being uncaring about those who are in need. In fact, the opposite is the truth: we recognize that government programs are wasteful, ineffective, and counterproductive to the aims that they are trying to achieve. As a Cato essay on federal welfare explains, private charity is superior to government programs for several reasons:

Private charities are able to individualize their approaches to the circumstances of poor people. By contrast, government programs are usually designed in a one-size-fits-all manner that treats all recipients alike. Most government programs rely on the simple provision of cash or services without any attempt to differentiate between the needs of recipients.

The eligibility requirements for government welfare programs are arbitrary and cannot be changed to fit individual circumstances. Consequently, some people in genuine need do not receive assistance, while benefits often go to people who do not really need them. Surveys of people with low incomes generally indicate a higher level of satisfaction with private charities than with government welfare agencies.

Private charities also have a better record of actually delivering aid to recipients because they do not have as much administrative overhead, inefficiency, and waste as government programs. A lot of the money spent on federal and state social welfare programs never reaches recipients because it is consumed by fraud and bureaucracy…

Another advantage of private charity is that aid is much more likely to be targeted to short-term emergency assistance, not long-term dependency. Private charity provides a safety net, not a way of life. Moreover, private charities may demand that the poor change their behavior in exchange for assistance, such as stopping drug abuse, looking for a job, or avoiding pregnancy. Private charities are more likely than government programs to offer counseling and one-on-one follow-up, rather than simply providing a check.

Charity and the Federal Government is a post from Cato @ Liberty - Cato Institute Blog

Two hundred and sixty years ago, James Madison was born in Virginia. His life was long and eventful, comprising the American Revolution, the writing and ratification of the U.S. Constitution, the founding of political parties, the War of 1812, and the rise of Andrew Jackson. The struggles that would culminate in the Civil War were evident in the last years of his life.

Along with his political career, Madison proved to be one of this nation’s most insightful and certainly its most influential political theorist. He is often accorded the twin titles of Father of the Constitution and the Bill of Rights. No doubt those titles claim too much for him or any other mortal. But according him those titles is not far from the truth.

What would surprise Madison about our current constitutional and political arrangements?

He would be surprised and, I think, displeased by the size and scope of the federal government. Madison was a limited government man. He thought the general welfare clause in Article I of the Constitution was simply a shorthand way of mentioning other enumerated powers, not a general grant of power for Congress to pursue whatever it might think served the general welfare. As he wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” Of course, for some decades now, the courts have permitted Congress broad powers under the general welfare clause.

He would also be taken aback by the all but plenary power accorded to Congress under the Commerce Clause of Article I. How could (can) a limited government be reconciled to such plenary power? Moreover, as he said in Congress, “if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”

I think Madison would also be surprised by how far the executive has taken on the prerogatives of an English king, in fact if not in law. Like many republicans of the founding era, he worried that the legislature would dominate the executive. We live in a time where Congress happily delegates its power to the executive branch and awaits the executive’s budget agenda. At the same time, Madison worried that executives, presidents and kings, had every reason to declare and make war, the latter being the most dreaded of “all enemies to public liberty.”  As he wrote in 1795:

Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.

In this light, it is perhaps inevitable that the authors of The Executive Unbound dismiss Madison in favor of Carl Schmitt, the author of The Concept of the Political and from 1933 onward, Preußischer Staatsrat and President of the Vereinigung nationalsozialistischer Juristen.

For Madison, the whole point was to bind government through a Constitution, enumerated powers, and ambition pitted against ambition. His was a noble vision of politics in service to individual liberty. Let us hope that we are not living “after the Madisonian Republic.”

Celebrating James Madison is a post from Cato @ Liberty - Cato Institute Blog

Today’s ruling vindicates the constitutional first principle that ours is a government of delegated, enumerated, and thus limited powers. Like Judge Hudson in the Virginia case, Judge Vinson recognized that the individual mandate represents an unprecedented and improper incursion beyond those powers: the federal government, under the guise of regulating commerce, cannot require that people engage in economic activity.

And this is as it should be: if the only limit on congressional power were Congress’ own assessment of the wisdom of each assertion of such power, the Constitution would be obsolete — as would any conception of checks and balances. James Madison, the author of the Federalist Paper (51) explaining how man’s non-angelic nature requires explicit limits on those who govern, would spin in his grave. As even would Alexander Hamilton — perhaps the Framer most favorably disposed to strong central power — who cautioned that courts should not be in the business of evaluating the “more or less necessity” of a piece of legislation but rather define judicially administrable rules to guide (but also limit) Congress’s actions.

And so today’s ruling, in a lawsuit that now has 26 states as plaintiffs — with two others challenging the health care “reform” separately — represents the latest and most significant victory for federalism and individual liberty. This will not end until the Supreme Court has its say, but the tide is clearly running in freedom’s favor.

I will comment further once I’ve had a chance to read through the ruling.

Health Care Ruling a Victory for Federalism and Individual Liberty is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Is there anything inappropriate about Justice Scalia’s speaking about the Constitution before Rep. Michele Bachmann’s Tea Party Caucus, as the New York Times editorial board suggests? Is it time to drop the fiction of a judicial monastery with justices detached from the political process?

My response:

There is nothing inappropriate about Justice Scalia’s speaking today before the congressional Tea Party Caucus — or any other group, for that matter, that is well within the mainstream of American politics. As POLITICO reports, Rep. Bachmann’s event is open to all members of Congress, and several Democrats have said they’ll attend.

The complaint by the editorial board of The New York Times –  that “the Tea Party epitomizes the kind of organization no justice should speak to” –reflects nothing more than that corner’s refusal to accept the legitimacy of the Tea Party, notwithstanding last November’s elections. When the board goes on to condemn the Tea Party’s “well-known and extreme point of view about the Constitution,” it might better direct its wrath at James Madison. After all, as the principal author of the Constitution, he’s the Framer who promised in Federalist 45 that the powers of the new government would be “few and defined” — the “extreme” view the Times editorialists regularly condemn.

In deciding cases, judges and justices need to be detached from politics, of course: They belong to the “non-political branch.” But that hardly precludes them from talking about the Constitution in political contexts. If anything, it is the Congress that needs to be more attentive to the Constitution its members take an oath to uphold. That, in fact, is the root of our problem today. And we have the Tea Party to thank for noticing it.

Justice Scalia Speaks to the Congressional Tea Party Caucus is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

In light of today’s reading of the Constitution in the new House, what misinterpretations of the Constitution do you regularly see in American politics? And are House Republicans implying that the previous Democratic majority did not have a firm grasp of the government’s founding document?

My response:

Thanks to the Tea Party, as I wrote in Tuesday’s Wall Street Journal, Congress seems to be rediscovering the Constitution — or at least many House Republicans seem to be. When members read the document aloud today, apparently for the first time in the nation’s history, they’ll be throwing down a marker: “We take the Constitution seriously, and intend to abide by its principles.” If true, how refreshing.

This is not a partisan matter. As many Republicans have said — albeit, some only after November’s elections — both parties for years have ignored the Constitution’s limits on political power. To confirm that, we need look no further than to James Madison, the principal author of the document, who assured skeptical ratifiers in Federalist 45 that the powers authorized by the Constitution were “few and defined.” That hardly describes today’s federal behemoth.

Thus, the main “misinterpretation” has been over the very idea of constitutional limits — particularly as inherent in the doctrine of enumerated powers, the principle that “We the People” gave Congress only 18 enumerated powers. The Commerce Clause, for example, was written mainly to ensure interstate commerce unfettered by state interference, not to enable Congress to regulate every aspect of life. And the General Welfare Clause was meant to limit Congress’s taxing power pursuant to its enumerated ends to objects of national, not particular, concern: it wasn’t meant to enable Congress to redistribute private wealth at will.

The great change came during the New Deal, of course, after FDR’s infamous Court packing threat, when a cowed Court began turning the Constitution on its head. But don’t take my word for that constitutional legerdemain. Here’s Roosevelt, writing to the chairman of the House Ways and Means Committee in 1935: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” And here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his handiwork some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” They knew exactly what they were doing.

So when today’s liberals tell us the Constitution authorizes the vast federal programs that now reduce so many Americans to government dependents, they reveal their historical ignorance — or their political ambition. And they’re reduced to the silliness we saw in Tuesday’s New York Times, where the Times editorialists ranted against today’s constitutional reading as “a theatrical production of unusual pomposity.” Illustrating their own penchant for pomposity, they then dug into their bag of adjectives and let loose: “a self-important flourish,” “their Beltway insider ritual of self-glorification,” “a presumptuous and self-righteous act,” “an air of vacuous fundamentalism,” ”all of this simply eyewash,” “a ghastly waste of time.” They must have been emotionally drained when they finished their screed.

The Constitution is not a blank slate, details to follow, as decided by transient majorities. Were it that, it never would have been ratified. After all, we fought a revolution to rid ourselves of overweening government, and fought a Civil War to institute at last the grand principles of the Declaration of Independence. Nor will those principles be restored in a day. But today’s reading will start a debate that is sorely needed, at the end of which one can hope for restoration.

Toward Restoring Constitutional Government is a post from Cato @ Liberty - Cato Institute Blog

Jerry L. Jordan, the former president of the Federal Reserve Bank of Cleveland, delivered the keynote address at the Cato Institute 28th Annual Monetary Conference held last week.

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Jerry L. Jordan: We Have Replaced Household Debt with Government Debt is a post from Cato @ Liberty - Cato Institute Blog

People inside the Beltway seem to think that the only things worth being said and written are said and written in Washington. John David Dyche’s column today makes a good case for the quality of commentary outside the all-knowing capital.

While most everyone in DC is calling the stretch run of the horse race, Dyche steps back and wonders whether the Kentucky Senate race would have been better for citizens if the U.S. Constitution had not been changed to direct election of senators. He thinks it would be.

I am not so certain. As Dyche notes, James Madison thought the representative or indirect aspects of American constitutional democracy would improve public choice. As times has passed, I wonder more and more about the quality of people drawn to all legislatures, including state bodies. Madison thought indirect election wold “refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” Should we still rely on the wisdom of that medium? And yet, what is the alternative? (Todd Zywicki has an informative article on the origins and demise of indirect election of senators).

Dyche works as an attorney in Louisville, Kentucky, and has written a nice biography of Mitch McConnell. His column is worth a regular read, especially if Rand Paul comes to Washington as a U.S. Senator. Dyche would be a good guide to how Paul’s libertarian tendencies are playing out politically back home.

Reform for Senate Elections? is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Is Alaska Republican Senate nominee Joe Miller correct to suggest that the federal minimum wage is unconstitutional? And beyond that constitutional question, is this a wise political strategy?

My response:

Joe Miller is absolutely right: The federal government has no authority under the Constitution to set a minimum wage — or to do so many of the countless other things it does today. When Nancy Pelosi was asked where in the Constitution Congress was authorized to order Americans to buy health insurance, she responded, “Are you serious?” That’s a mark of how little America’s political elites today understand the document they take an oath to uphold.

James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be “few and defined” – a far cry from today’s Leviathan. How did the change happen? In a nutshell, the ideas of the Progressives – in particular, wide-ranging rule by elites — were incorporated in “constitutional law” (not to be confused with the Constitution), not by constitutional amendment but by a cowed Supreme Court following Franklin Roosevelt’s infamous 1937 Court-packing scheme. That opened the floodgates to the modern redistributive and regulatory state that so many Americans love so much today. Don’t take my word for it. Here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his work some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.”

But that’s changing, if the Tea Party movement is any indication. The American people are waking up to the truth: The governmnet gives nothing that it doesn’t first take. It’s not Santa Claus. And whether the taking is in the form of money, property, or liberty, it comes to the same thing. So in answer to the question whether telling constitutional truths is wise political strategy, we’ll see. If the people can’t take the truth, it’s only a matter of time before we go the way of civilizations before us. Fortunately, we still have enough freedom to tell such truths.

Can We Take the Truth? is a post from Cato @ Liberty - Cato Institute Blog

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.”

Constitution Day is a post from Cato @ Liberty - Cato Institute Blog

Last year, when the issue of defunding ACORN was a hot-button issue, I told countless radio talk show audiences that the focus should be on eliminating the underlying fuel that created the organization—the flow of federal subsidies.

Chris Edwards pointed this out in September. If Congress simply stops subsidizing ACORN, its activists will reincorporate under new names and again become eligible for funds. Alas, that’s precisely what ACORN is currently doing.

From FoxNews.com:

One of the latest groups to adopt a new name is ACORN Housing, long one of the best-funded affiliates. Now, the group is calling itself the Affordable Housing Centers of America.

Others changing their names include what were among the largest affiliates: California ACORN is now Alliance of Californians for Community Empowerment, and New York ACORN has become New York Communities for Change. More are expected to follow suit.

A comment from Frederick Hill, a spokesman for Republicans on the U.S. House oversight and government reform committee, doesn’t indicate that the GOP has quite received the message:

To credibly claim a clean break, argued Hill, the new groups should at least have hired directors from outside ACORN.

It appears that for many Republicans, attacking ACORN represented political opportunism, not a statement about the proper role of the federal government.

Further rendering the GOP’s ACORN agenda moot was last week’s ruling by a U.S. District judge that singling out ACORN for defunding is unconstitutional. It truly boggles the mind what passes for constitutional and unconstitutional in this country.

Tuesday was the birthday of James Madison, the “Father of the Constitution.” Reflecting upon Madison’s wise words, it’s hard to understand how the federal “community development” programs that have funded ACORN could pass constitutional muster:

“The government of the United States is a definite government, confined to specified objects. It is not like state governments, whose powers are more general. Charity is no part of the legislative duty of the government.”

“[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

“With respect to the two words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”

See this essay for reasons why these HUD community development programs should be abolished.

To Kill ACORN, Kill the Programs is a post from Cato @ Liberty - Cato Institute Blog

1. Additional federal spending transfers resources from the more productive private sector to the less productive public sector of the economy. The bulk of federal spending goes toward subsidies and benefit payments, which generally do not enhance economic productivity. With lower productivity, average American incomes will fall.

2. As federal spending rises, it creates pressure to raise taxes now and in the future. Higher taxes reduce incentives for productive activities such as working, saving, investing, and starting businesses. Higher taxes also increase incentives to engage in unproductive activities such as tax avoidance.

3. Much federal spending is wasteful and many federal programs are mismanaged. Cost overruns, fraud and abuse, and other bureaucratic failures are endemic in many agencies. It’s true that failures also occur in the private sector, but they are weeded out by competition, bankruptcy, and other market forces. We need to similarly weed out government failures.

4. Federal programs often benefit special interest groups while harming the broader interests of the general public. How is that possible in a democracy? The answer is that logrolling or horse-trading in Congress allows programs to be enacted even though they are only favored by minorities of legislators and voters. One solution is to impose a legal or constitutional cap on the overall federal budget to force politicians to make spending trade-offs.

5. Many federal programs cause active damage to society, in addition to the damage caused by the higher taxes needed to fund them. Programs usually distort markets and they sometimes cause social and environmental damage. Some examples are housing subsidies that helped to cause the financial crises, welfare programs that have created dependency, and farm subsidies that have harmed the environment.

6. The expansion of the federal government in recent decades runs counter to the American tradition of federalism. Federal functions should be “few and defined” in James Madison’s words, with most government activities left to the states. The explosion in federal aid to the states since the 1960s has strangled diversity and innovation in state governments because aid has been accompanied by a mass of one-size-fits-all regulations.

For more, see DownsizingGovernment.org.

Six Reasons to Downsize the Federal Government is a post from Cato @ Liberty - Cato Institute Blog

The House has passed a measure imposing a special punitive tax of 90% on certain employee compensation in response to the AIG scandal. As others have noted, this raises serious constitutional issues. Article I, Section 9, Clause 3 says simply and directly: “No Bill of Attainder or ex post facto Law shall be passed.” The congressional bill being considered in response to the AIG bonuses seems to violate both those prohibitions at least in spirit.

The Constitution’s Framers apparently considered (page 154) this clause to be very important in guarding against legislative tyranny, and James Madison noted in Federalist 44:

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.

Aside from the dangers to liberty from overzealous members of Congress, there are issues of priorities here. While Congress has been busy with this particular inquisition, the Federal Reserve is moving ahead with a new plan to shower the economy with a massive $1.2 trillion cash infusion–an amount 7,200 times greater than the $165 million of AIG retention bonuses.

So members of Congress should be grabbing their pitchforks and heading down to the Fed building, not lynching AIG financial managers, most of whom were not the ones behind the company’s failures.

New Era of Unlimited Federal Power is a post from Cato @ Liberty - Cato Institute Blog