Ever Wonder Why We Even Bothered?
When it comes to the concept of limited government, which is really at the heart of the recent imbroglio over Obamacare, the Constitution has been described as the law that controls the government.
The Constitution starts off with a preamble that states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This section of the document is not, in and of itself, a part of the Constitution. It simply describes the reason why We the People are defining what we are allowing the government to do and why we are bothering to do anything at all.
But think, for just a moment, exactly what the Constitution is. It is a "to-do" list from the American people clearly telling the government what things the government must do. It also clearly specifies what actions it is allowed to take to accomplish those things. If it's not listed as a power that We the People are allowing the government to exercise, then the government is not allowed to do it. For example, to pay for the work of the government, We the People have told the government that some taxation is allowed. On the other hand, bank robbery is not listed as an allowed government power, even if it would make life for senators and congressmen so much easier, at least for a short time.
Why was the document written in this form? First, after living under George III and his absolutist monarchy, the idea of putting some limits on what the government would be allowed to do was very appealing. But there is another way of phrasing that very same idea that does not sound as scholarly -- nor does it seem as polite -- but it is probably more accurate and truthful.
The Constitution, as written, is a loud and strong declaration that We the People do not trust the government that we, ourselves, created.
James Madison, in Federalist #51, formulated the classic rationale underlying the limitations inherent in the Constitution when he wrote:
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Madison's view of government echoes the words of George Washington, who said:
Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.
Federalist #51 is also quite clear as to the desire of the founders to create a government that clearly inhibits the concentration of power in any single office. The president cannot create law; the legislature must get the two houses to agree on any proposed law; the judiciary's sole function (at the level of the Supreme Court) is to insure that any laws proposed by Congress and not vetoed by the president, are in fact, within the constraining limits defined by We the People in the Constitution itself.
Madison hoped that having a strong federal form of government -- or, as he phrased it, a "compound republic" -- would also create another restraint on the central government by limiting the power of the central government and increasing the power and responsibilities vested in the governments of the several states. The states that ratified the Constitution agreed, notably through the introduction and approval of the 9th and 10th Amendments.
The recent Supreme Court ruling, while disappointing to the majority of not merely conservative Americans, but a majority of all Americans, was at least a demonstration that the Constitution and the Federalist Papers are still alive. Not well, not robust, but still alive. The states -- at least twenty-six of them, acting in concert -- moved to limit the overreach of the federal government, exactly as Madison had envisioned.
Justice Roberts's opinion, while not generating the result that was sought, at least affirmed that there actually are limits to the power of the central government. The contention that the Commerce Clause cannot be applied as a blanket authorization for Congress and the president to do whatever pops into their heads was a huge, if serendipitous, result of his ruling.
By redefining the central government's requirement that all Americans provide their own health insurance, either through their employer or by purchasing such coverage themselves as a "tax" rather than a "penalty," the Supreme Court has put the final decision about ObamaCare where it has really been since the start of the republic. He put it back on the decision of We the People. As Roberts noted in the majority opinion:
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.
Now it is up to We the People to vote in November and decide if what We the People said when the Constitution was created is something that we really believe in -- or whether we really can't be bothered anymore.
All we can hope that the Constitution gets a shot in the arm and that it regains some of its vigor starting November 7.
Jim Yardley is a retired financial controller for a variety of manufacturing firms, a Vietnam veteran, and an independent voter. Jim blogs at http://jimyardley.wordpress.com, or he can be contacted directly at email@example.com.