Constitutional Myth #2: The 'Purpose' of the Constitution Is to Limit Congress

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What really drives this idea today isn't legal theory; it's the political fear that the people of the United States will enact progressive legislation

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"The Constitution was written explicitly for one purpose -- to restrain the federal government," Rep. Ron Paul said in 2008.

Bless his heart. (For those of you who didn't grow up in the South, that expression in context means, "He means well, but sometimes I just want to slap him.") Dr. Paul is a likeable and honest person, but he knows as much about the Constitution as I do about obstetrics--the difference being that I don't try to instruct the nation on how to deliver babies.

Dr. Paul is far from alone in this bizarre delusion. If there's anything the far right regards as dogma, it's that the "intent" of the Constitution was to restrain, inhibit, intimidate, infantilize, disempower, disembowel, and generally smack Congress and federal bureaucrats around. "Does anyone seriously believe that when the Founders gathered in Philadelphia 220 years ago they were aspiring to control the buying decisions of individual consumers from Washington?" Sen. Tom Coburn asks. "They were arguing for the opposite and implored future Courts to slap down any law from Congress that expanded the Commerce Clause." Sen. Jim DeMint claims that "although the Constitution does give some defined powers to the federal government, it is overwhelmingly a document of limits, and those limits must be respected."

If this is true, it's the kind of truth that comes to us only from divine revelation--because it sure doesn't appear in the text of the Constitution or the history of its framing. Historically, in fact, it's ludicrously anachronistic, like claiming that the telescope was invented in 1608 so that people could watch Apollo 13 land on the moon. There was no federal government to speak of in 1787. "Congress" was a feckless, ludicrous farce. The concern that brought delegates to Philadelphia was that, under the Articles of Confederation, Congress was too weak. Many of the Framers were close to panic because the Confederation Congress was unable to levy taxes, pay the nation's debts, live up to its treaty obligations, regulate commerce, or restrain the greedy, predatory state governments. The Union seemed on the verge of splitting into tiny republics, which would quickly be recolonized by Britain, France, or Spain.


As early as 1780, Alexander Hamilton (one of the authors of The Federalist) wrote to James Duane that "[t]he fundamental defect [in the Articles of Confederation] is a want of power in Congress. It is hardly worth while to show in what this consists, as it seems to be universally acknowledged, or to point out how it has happened, as the only question is how to remedy it."

In April 1787, James Madison, second author of The Federalist, wrote to George Washington his aim for a new Constitution: "The national government should be armed with positive and compleat authority in all cases which require uniformity." (Madison also wanted a rule that no state law could take effect until Congress explicitly approved it.)

Shortly before, Washington had written to John Jay, "I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several States." Jay, third author of The Federalist, made clear to Washington his own view: "What Powers should be granted to the Government so constituted is a Question which deserves much Thought--I think the more the better--the States retaining only so much as may be necessary for domestic Purposes; and all their principal Officers civil and military being commissioned and removeable by the national Governmt." (Note the last part: State executives would be appointed by the federal government.)

As for the Constitution's text, if it was "intended" to limit the federal government, it sure doesn't say so. Article I § 8, a Homeric catalog of Congressional power, is the longest and most detailed in the Constitution. It includes the "Necessary and Proper" Clause, which delegates to Congress the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Framers' main plan for preventing overreach by the federal government lay not in coded restrictions on Congress's powers but in the Constitution's political structure. This is what George Washington meant when he expressed hope that "a liberal, and energetic Constitution, well guarded & closely watched, to prevent incroachments, might restore us to that degree of respectability & consequence, to which we had a fair claim, & the brightest prospect of attaining."

The idea was that a bicameral legislature, an independent executive with the power of veto, and a separation between legislative and judicial power would channel Congress's broad powers into constructive channels. State governments would advocate effectively for their own interests both in Congress and with the people. That's a very different vision than the current right-wing claim that the Constitution contains between-the-lines "thou shalt nots" placing various areas off limits to regulation.

The far-right argument has the seductive power of any half-truth. Of course there are limits on Congress's power--they are located in Article I § 9: Congress, for example, can't pass a "bill of attainder," tax exports, or grant titles of nobility. In addition, the Bill of Rights explicitly prevents Congress from limiting freedom of speech, "the right to bear arms," trial by jury and so forth. But conservatives mean something different: What they mean is that if something isn't written down in the Constitution in so many words, the "intent" of the Framers was to keep Congress from doing it. If Congress wasn't doing it before 1787, it can't do it now.

The worst insult they can level at a governmental measure is that it is "unprecedented." Before the Civil War, conservatives argued that Congress couldn't build roads and canals; it was unprecedented. After the Civil War, Congress "couldn't" regulate child labor; it was unprecedented. When the Depression hit, Congress "couldn't" pass Social Security; it was unprecedented. When the Civil Rights movement arose, Congress "couldn't" outlaw discrimination in public accommodations; it was unprecedented. Medicare was unprecedented; so was the National Environmental Policy Act; so was the School Lunch program. Today, Congress "can't" enact a health-care system. We've never had one, so we can't have one.

In fact, the Constitution itself did the unprecedented. It created a national, republican government with adequate power to maintain and govern a strong Union during the unforeseeable events ahead. "Nothing can therefore be more fallacious, than to infer the extent of any power, proper to be lodged in the National Government, from an estimate of its immediate necessities," Hamilton wrote in Federalist 34. "There ought to be a capacity to provide for future contingencies, as they may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity." From the record and the text, that was the "purpose" of the Constitution--to create a government with adequate power, even under new circumstances, to make the United States what George Washington, in his final address as Commander of the Continental Army, called "a respectable nation."

The error about the purpose of the Constitution explains the curiously two-faced nature of far-right "constitutionalism." On the one hand, they insist that they love the Constitution more than life itself; on the other, they keep trying to sneak amendments into it to strip Congress of power over the budget or allow state legislatures to repeal federal laws. The Constitution they claim to revere actually looks a lot like the Articles of Confederation.

The current war on federal power, like the other attacks on its power throughout history, is really motivated by an entirely realistic fear that those idiots, the people, will enact progressive legislation. Only by importing prohibitions on Congress into the Constitution can that terrible outcome be prevented.

But the more tightly we bind Congress with imaginary chains, the less we, the people, can create a "respectable nation."




Garrett Epps's Full Constitutional Myth Series:

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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