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
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.
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."