Freeman Essay #29: “The Constitution’s New Defenders”

by Don Boudreaux on January 5, 2018

in Freeman, Legal Issues

In the Fall of 1998, in the wake of Bill Clinton’s affair with White House intern Monica Lewinsky, G.O.P. members of the House of Representatives impeached him on a couple of charges.  (The Senate acquitted Clinton of these charges and, therefore, he was not removed from office.)  In this December 1998 Freeman essay I remarked on the Democrats’ remarkable rediscovery of, and new-found allegiance to, binding Constitutional rules.  Alas, this reverence for the Constitution was (get ready for it!) insincere and short-lived.

My essay is below the fold.

All the talk of cigars, blue dresses, and other paraphernalia of modern presidential amours has drawn national attention away from how the prospect of impeaching Bill Clinton is inspiring a sea-change in constitutional theory. Many big-government advocates now champion strict constitutional construction. The President’s defenders are probably at this very moment poring over Robert Bork’s scholarly articles in search of intellectual ammunition for Clinton’s defense against impeachment.

For example, when interviewed recently on National Public Radio, Rep. Zoe Lofgren (D-CA), a member of the House Judiciary Committee, sounded downright Borkian. She solemnly intoned that we moderns are not free to read into the Constitution’s phrase “high crimes and misdemeanors” (which governs impeachment) anything that we wish. Instead, she advised that the proper meaning of these words “comes from Alexander Hamilton, from George Mason, from Madison.” Rep. Lofgren added that she has “spent a lot of time researching, going back and reading again The Federalist Papers [and] the notes from the Constitutional Convention.”

She concludes that members of Congress “are constrained by what the law is, what the Constitution says. If we’re just going to do whatever we think, then we’re not going to have a constitutional form of government.”

Hear, hear! Ms. Lofgren is a member of a political class that for sixty years has waxed eloquent over “a living constitution” whose plain language should never curb Washington’s zeal to regulate the economy, redistribute wealth, and take private property. This the-Constitution-says-what-we-fancy-it-to-say conviction was most notably championed by the late Justice William Brennan, who justified his rejection of strict constructionism by arguing that “[i]t is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.”

This is an expedient view of the Constitution for those who disapprove of that document’s clear restrictions on government power. The framers feared government, and the Constitution they ratified is crystal clear that government power in America was to be severely limited. But since 1937 or thereabouts, Congress, the various Presidents (yes, even Reagan), and the judiciary have refused to be constrained by the constitutional text. The consequence inundates us: a behemoth, obnoxious, deceitful, and ravenous government.

Fortunately, judging from her remarks made soon after Independent Counsel Ken Starr released his report, Rep. Lofgren would now rightly scold those who cling to Justice Brennan’s politically convenient view that the Constitution means whatever we moderns want it to mean. Perhaps Rep. Lofgren now has courage to direct her colleagues’ attention to Federalist #10 in which James Madison says that the protection of people’s abilities to own property “is the first object of government” and that government efforts to redistribute property are “improper or wicked.”

Hey, maybe the era of big government really is over!

Of course, cynics might accuse Rep. Lofgren and her fellow converts to original-intent constitutionalism (such as Rep. Barney Frank of Massachusetts) of insincerity–of advocating original intent only on the question of impeachment, and then merely to save this particular president’s political skin. In light of the dubious ethics of today’s politicians, this possibility can’t be dismissed. Thankfully, it’s easy to test the sincerity of Rep. Lofgren & Co. If they are willing to repeal the vast bulk of regulatory legislation enacted by Congress since the New Deal, then their belief in Constitutional government is genuine. But if Rep. Lofgren and her colleagues resist repealing these statutes, we can conclude only that she and her friends are hypocritical, insincere, bamboozling politicians much like Clinton, according to his critics.

Why is repeal of this legislation a sound test of Rep. Lofgren’s sincerity?

The Constitution delegates to Congress only a handful of powers. All powers not explicitly delegated to Washington are, as the Tenth Amendment says, “reserved to the States respectively, or to the people.”

Article I, Section 8 is where the Constitution spells out most of the powers delegated to Congress. These powers include regulating only interstate and foreign commerce, coining money, establishing post offices, creating a federal court system, supporting an army and a navy, and a handful of other powers that the framers thought were necessary to forge the states into a nation without stripping them of their plenary powers or the people of their rights under the common law.

On any plausible reading of the Constitution – and of the accompanying commentary by the framers, such as The Federalist Papers – the vast bulk of what Washington does today is unconstitutional. Nowhere does the Constitution give to Washington the power to specify the size of our toilet tanks, the fuel-efficiency of our automobiles, or what constitutes sexual harassment in the workplace (another issue, incidentally, on which Clinton’s supporters insist on strict construction). Nowhere does the Constitution give to Washington the authority to use taxpayer funds to subsidize farmers or to help corporations advertise their products in foreign markets. And nowhere does the Constitution authorize Washington to dictate minimum wages, to prevent private landowners from developing their properties, or to distribute welfare. The framers left most regulatory powers with the states and even these powers were understood to be constrained by common-law protections that citizens enjoyed against intrusion by any government.

So let Rep. Lofgren and her fellow Constitutional scholars in Congress prove that they respect the framers as much as they now claim: repeal federal minimum-wage legislation, the Americans with Disabilities Act, the Endangered Species Act, and the countless other statutes and regulations that today plague ordinary Americans.

If the Constitution again becomes the law of the land, America can look forward to a great flourishing of freedom and prosperity. Bill Clinton and his paramours will be forgotten. And future generations might even erect a statue of Zoe Lofgren and her friends, Defenders of the Constitution.

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