Ruth Marcus wrote an article recently in the Washington Post which got me thinking about the past and future of America. As I see it, American history under our current constitution can be divided up into 3 major eras. The first era I refer to constitution minus, the second as contitutional, and the third as constitution plus.
The Constitutional Convention held in Philadelphia in the Summer of 1787 dramatically increased the power of the central government. This was necessary because the Articles of Confederation allowed too much chaos and division. For example, each state had control over its own tariff policy. This allowed outside nations to manipulate the individual states by striking separate deals with different states. This in turn inspired the states to erect inter-state tariff barriers and eventually engage in all-out trade wars.
When the new Constitution was written, the northern states wanted to solve this problem by giving the tariff powers exclusively to the central government. Southern states resisted this because they sold more agricultural products to Europe and thus (rightly, as it turned out) feared that they would be hurt the most in the event that protective tariffs were enacted. Nevertheless, the South was "bought off" when the northern states agreed to allow the international slave trade to continue for an additional 20 years. From this point on, slavery and tariffs were intertwined in the southern mind. And so the interstate commerce clause was put into the Constitution for the purpose of avoiding interstate tariff wars.
As the new Constitution went into effect, the South, in particular, was concerned that they had given too much power to the central government. As a result, they worked hard to restrain the national government. They did this in two ways; by using the Senate as a veto over the House of Representatives (which was strongly anti-slavery and pro-tariff) and by electing either southern presidents or northern "doughface" presidents (northerners sympathetic to southern views, ie Fillmore, Pierce, Buchanan). That is why the Missouri crisis was so important. It was the first time that northerners threatened to reduce the Senate veto power, by turning Missouri into a free state through legislative fiat. By the time Lincoln was elected in 1860, it was clear that the South had lost both of their advantages. There were more free states than slave and an anti-slavery president had been elected. And so the south seceded and the Civil War came.
The Civil War was a great turning point in American History. For the first 70 years of our nation's history, the South had managed to restrain the federal government from using its full constitutional power (thus constitution minus). After the War, the federal government was no longer constrained by the south and thus tended to implement policies and laws which were in line with the Constitution but did not exceed (or rarely exceeded) the power granted to it by the Constitution. This was not universally true. For example, the 13th, 14th, and 15th amendments to the Constitution were clearly about giving the federal government the right to impose rules and regulations upon the states which gave black Americans their equal rights. In a concession to white southerners, the national government failed to live up to this ideal and the black community would be forced to wait until the 1950s and 1960s before they would be granted legal equality. Still from 1865 until 1935 in most areas this was an era of constitutional government.
The New Deal was the next great turning point in American History. All around the world the move toward stronger central governments was under way. Communism in Russia, Fascism in Hungary, Italy, Spain, and Germany. The U.S. was not immune from this tendency and when the financial crisis occurred in 1929, first Hoover and then Roosevelt moved toward using the power of the national government to solve a problem which, in the past, had been allowed to resolve itself. FDR, in particular, seemed to want to remake America into a nation where the national government was responsible for the individual. This was something new in America and not part of the constitution as written. Particularly limiting was the 10th Amendment which made it clear that the Federal government only had those powers specifically granted to it and that all other powers remained with the states.
FDR's brilliance was in realizing that this and all other limitations could be overcome by getting the "right people" on the Supreme Court. One of the few big mistakes the framers made in writing the Constitution was in not making it clear who would get to be the referee when a dispute broke out between the state and federal governments. Since the Marbury v. Madison case in 1804, the Supreme Court had siezed and held this power in spite of the logical inconsistancy of having a branch of the Federal government determine disputes between the Federal government and the states. It is as if in a football game between the Cowboys and Redskins, the refs were all employees of the Redskins. Does anyone doubt which side the calls would tend to favor?
By putting the "right people" on the Supreme Court, FDR completely changed the balance of power in favor of an overweening federal government and thus we enter into the Constitution plus era. There are many areas that could be talked about. But the example that inspired this treatise was cited in Ruth Marcus's Post article. She explains how the commerce clause now allows the federal government to regulate all kinds of areas of personal choice:
In the 1942 case of Wickard v. Filburn, the justices ruled that even though an activity may "be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."
How about that! You may engage in an activity that is local (ie not interstate) and not commerce and yet it can be regulated under the power of the Intersate Commerce clause of the Constitution!!! If that isn't Orwellian, nothing is. If that is not an anti-Constutional ruling masquerading as a constitutional ruling, than nothing is (remember, the Interstate Commerce clause was put into the Constititution to avoid interstate tariff wars - here is was being used to tell a farmer to reduce how much grain he could grow on his farm). Notice the year of this case: 1942. By this time FDR had appointed 7 out of 9 of the justices on the court.
Since then, we the people of the United States have been living out of sinc with our Constitution. The Federal government now engages in all kinds of activities that are not sanctioned by the Constitution. In effect we have been living a lie. I don't know that this will lead to a dissolution of the nation. But I do know that living out of sinc with our Constitution in the first 70 years of our nation produced a kind of structural stress that resulted in a great Civil War. Of course, we emerged out of that war stronger than ever - but it did not have to turn out that way.
I am thankful that God has allowed me and my family to enjoy the privileges and benefits of living in the greatest nation that the earth has ever seen. But I worry that until we either go back to living according to our Constitution or agree to modify the Constitution to reflect current practices, the cognitive dissonance produced will result in another great national crisis.
Noland
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