by Ron Paul
Jefferson's approach to the Constitution--which he adamantly believed could be understood by the average person and was not some secret teaching that had to be divined by immortals in black robes--was refreshingly simple. If a proposed federal law was not listed among the powers granted to Congress in Article I, Section 8, then no matter how otherwise attractive it seemed, it had to be rejected on constitutional grounds. If it were especially wise or desirable, there would be no difficulty in amending the Constitution to allow for it. And according to Jefferson we should always bear in mind, to the extent possible, the original intention of those who drafted and ratified the Constitution: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
"Our peculiar security is in possession of a written Constitution," Jefferson advised us. "Let us not make it a blank paper by construction." Jefferson was afraid, in other words, that we would allow our government to interpret the Constitution so broadly that we may as well be governed by a blank piece of paper. The limitations the Constitution placed on the federal government had to be taken seriously if we expected to maintain a free society. There would always be a powerful temptation to allow the federal government to do something many people wanted, but that the Constitution did not authorize. Since the amendment process is time-consuming, there would be a further temptation: just exercise the unauthorized power without amending the Constitution. But then what is the point of having a Constitution at all?
It is true that although Jefferson was a great constitutional exegete, he was not himself present at the Constitutional Convention. But Jefferson's ideas were not his alone: they reflected many of the sentiments expressed at his state's ratifying convention by such important and diverse figures as Edmund Randolph, George Nicholas, and Patrick Henry--not to mention John Taylor of Caroline, perhaps the most prolific political pamphleteer of the 1790s. Jefferson was merely giving voice to this much larger tradition when he expounded his strict-constructionist views.
"Confidence is everywhere the parent of despotism," said Jefferson in 1798. "Free government is founded in jealousy, and not in confidence. . . . In matters of Power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Nearly a quarter of a century later, Jefferson could still be heard uttering the same warning: "Is confidence or discretion, or is STRICT LIMIT, the principle of our Constitution?"
I sometimes hear the objection that certain phrases in the Constitution give the federal government more power than what is listed in Article I, Section 8. The "general welfare" clause is often cited, although equally dishonest interpretations of the interstate commerce and "necessary and proper" clauses have also been put forward. I have already noted that common law held lists of powers such as the one in Article I, Section 8, to be exhaustive, a point that refutes the idea that qualifying phrases like "general welfare" could give an open-ended character to the powers themselves. But the testimony of the Framers is also very clear. James Madison wrote, "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." Toward the end of his life, he added: "With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." And of course, as Madison elsewhere wrote, if the federal government really had been intended to carry out whatever action might promote the general welfare, what was the point of listing its specific powers in Article I, Section 8, since this superpower would have covered all of those anyway?
The typical reply to this argument, if one is forthcoming at all, is that Alexander Hamilton had a different view of the "general welfare" clause. Indeed he did, but what does that prove? Hamilton was dramatically out of step with most of the other delegates to the Constitutional Convention. He was also inconsistent in his views, saying one thing before the Constitution was ratified and another after ratification. In his 1791 Report on Manufactures, he denied that the spending authority of Congress was confined to the powers enumerated in Article I, Section 8, laying out a broad array of areas he wanted to see receive government funding--precisely the areas he denied the national government would have jurisdiction over when he wrote Federalist No. 17 and Federalist No. 34 several years earlier.
Patrick Henry raised precisely this concern as the ratification of the Constitution was being debated in Virginia: wasn't "general welfare" a dangerously open-ended phrase that would permit the federal government to do whatever it wanted, since government officials could blandly claim that all its measures were intended to promote the general welfare? Supporters of the Constitution gave Henry a definitive answer: no, "general welfare" did not and could not have such a broad meaning.
Now, isn't our Constitution a "living" document that evolves in accordance with experience and changing times, as we're so often told? No--a thousand times no. If we feel the need to change our Constitution, we are free to amend it. In 1817, James Madison reminded Congress that the Framers had "marked out in the [Constitution] itself a safe and practicable mode of improving it as experience might suggest"--a reference to the amendment process. But that is not what advocates of a so-called living Constitution have in mind. They favor a system in which the federal government, and in particular the federal courts, are at liberty--even in the absence of any amendment--to interpret the Constitution altogether differently from how it was understood by those who drafted it and those who voted to ratify it.
Leave aside the alleged problem of determining exactly what the Framers intended by this or that constitutional clause--supporters of the living Constitution must be able to figure out the original intent well enough if they are so sure we need to evolve away from it. If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?
A "living" Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they've simply misunderstood: the Constitution, you see, has merely evolved with the times. Thus, as in Orwell's Animal Farm, "no animal shall sleep in a bed" becomes "no animal shall sleep in a bed with sheets," "no animal shall drink alcohol" becomes "no animal shall drink alcohol to excess," and "no animal shall kill any other animal" becomes "no animal shall kill any other animal without cause."
That's why on this issue I agree with historian Kevin Gutzman, who says that those who would give us a "living" Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us against the encroachments of government power.
During my public life I have earned the nickname Dr. No, a reference to my previous occupation as a physician combined with my willingness to stand against the entire Congress if necessary to vote no on some proposed measure. (I am told I have been the sole "no" vote in Congress more often than all other members of Congress put together.) As a matter of fact, I don't especially care for this nickname, since it may give people the impression that I am a contrarian for its own sake, and that for some reason I simply relish saying no. In those no votes, as in all my congressional votes, I have thought of myself as saying
yes to the Constitution and to freedom.
The Constitution has much to say to us regarding foreign policy, if we will only listen. For over half a century the two major parties have done their best to ignore what it has to say, especially when it comes to the initiation of hostilities. Both parties have allowed the president to exercise powers of which the Framers of the Constitution thought they had deprived him. And since both parties have been contemptuous of the Constitution's allocation of war powers between the president and Congress, neither one--with very rare exceptions--ever calls the other out on it.
The Framers did not want the American president to resemble the British king, from whom they had separated just a few years earlier. Even Alexander Hamilton, who was known to be sympathetic toward the British model, was at pains in the Federalist Papers to point out a critical difference between the king and the president as envisioned by the Constitution:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies--all of which, by the Constitution under consideration, would appertain to the legislature.
Whatever kind of evidence you want to examine, whether constitutional or historical, the verdict is clear: Congress was supposed to declare war, and the president in turn was to direct the war once it was declared. This rule was scrupulously observed throughout American history until 1950 and the Korean War. Short of a full-fledged declaration of war, in lesser conflicts Congress nevertheless authorized hostilities by statute. Any exceptions to this general rule involved military activities so minor and on such a small scale as hardly to be worth mentioning.
The Korean War was the great watershed in the modern presidential power grab in war-making. President Harry Truman sent Americans halfway around the world without so much as a nod in the direction of Congress. According to Truman, authorization from the United Nations to use force was quite sufficient, and rendered congressional consent unnecessary. (Apart from being dangerous, that idea is simply false: Article 43 of the United Nations Charter states that any United Nations authorization to use force must be subsequently referred to the governments of each nation "in accordance with their respective constitutional processes"; this principle was reaffirmed in the United States in the debates over the United Nations Participation Act of 1945.) Truman also claimed that the Constitution's commander-in-chief clause gave him the authority to plunge America into war on his own initiative.
Truman's interpretation of the Constitution was completely untenable. Nothing in American history supports it: not the Constitutional Convention, the state ratifying conventions, the Federalist Papers, early Court decisions, or the actual practice of war-making throughout most of American history. Even the early examples that are typically cited as evidence of presidential war-making--John Adams's actions during the Quasi War with France, and Thomas Jefferson's confrontation with the Barbary pirates of north Africa--show no such thing. Both of these minor incidents were carried out according to congressional statute, with the Supreme Court ruling that a presidential directive contrary to such statutes was of no force.
In spite of its complete lack of constitutional foundation, this belief that the president may take the country to war on his own authority, without consulting anyone, has become the conventional wisdom in both major parties, although there has been a modest backlash against it since the Iraq war. Neoconservatives have been particularly eager to promote this deviation from the Constitution. This, it seems, is their version of the "living" Constitution.
Interestingly enough, one of the chief critics of Truman's exercise of power was Senator Robert A. Taft, one of the most conservative Republicans of his day (and who was in fact known as "Mr. Republican"). Speaking on the Senate floor, Taft denounced Truman's arguments and behavior in no uncertain terms:
I desire this afternoon to discuss only the question of the power claimed by the President to send troops anywhere in the world and involve us in any war in the world and involve us in any war in which he chooses to involve us. I wish to assert the powers of Congress, and to point out that Congress has the power to prevent any such action by the President; that he has no such power under the Constitution; and that it is incumbent upon the Congress to assert clearly its own constitutional powers unless it desires to lose them.
"In the long run," Taft went on,
the question we must decide involves vitally, I think, not only the freedom of the people of the United States, but the peace of the people of the United States. . . . If in the great field of foreign policy the President has arbitrary and unlimited power, as he now claims, then there is an end to freedom in the United States in a great realm of domestic activity which affects, in the long run, every person in the United States. . . . If the President has unlimited power to involve us in war, war is more likely. History shows that . . . arbitrary rulers are more inclined to favor war than are the people, at any time.
Responding to various defenses offered by the president and administration officials, Taft declared: "I deny the conclusions of the documents presented by the President or by the executive department, and I would say that if the doctrines therein proclaimed prevailed, they would bring an end to government by the people, because our foreign interests are going gradually to predominate and require a larger and larger place in the field of the activities of our people."
In 2002, as war with Iraq loomed, I proposed that Congress officially declare war against Iraq, making clear that I intended to oppose my own measure. The point was to underscore our constitutional responsibility to declare war before commencing major military operations, rather than leaving the decision to the president or passing resolutions that delegate to the president the decision-making power over war. The chairman of the International Relations Committee responded by saying, "There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one of them. There are things no longer relevant to a modern society. We are saying to the president, use your judgment. [What you have proposed is] inappropriate, anachronistic; it isn't done any more."
What a relief that we have people in our government who will keep us posted on which constitutional provisions they have decided are no longer "relevant"!
Now, didn't Congress authorize the war in Iraq after all? No, and certainly not in a manner consistent with the Constitution. Congress has no constitutional authority to delegate to the president the decision regarding whether to use military force. That power was consciously and for good reason put in the hands of the people's elected representatives in the legislature.
Louis Fisher, one of the nation's experts on the subject of presidential war powers, described what happened this way: "The resolution helped bring pressure on the Security Council to send inspectors into Iraq to search for weapons of mass destruction. They found nothing. As to whether war should or should not occur, the committee washed its hands. By passing legislation that allowed the president to make that decision, Congress transferred a primary constitutional duty from the legislative branch to the executive branch. That is precisely what the Framers fought against."
Meanwhile, all these wars have to be fought by someone, and that is why the military draft is being spoken about more and more. Given the overseas ambitions of so much of our political class, a return of the draft may actually be closer than we realize. (As a matter of fact we have something like a de facto draft already, what with all the extensions being imposed on our troops.) Having stretched our military to the breaking point, where do they expect to find the troops for the next conflict?
The draft is a totalitarian institution that is based on the idea that the go
vernment owns you and can dispose of your life as it wishes. Republican Senator Robert Taft said that the draft was "far more typical of totalitarian nations than of democratic nations. It is absolutely opposed to the principles of individual liberty, which have always been considered a part of American democracy." Conservative thinker Russell Kirk referred to the draft as "slavery." Military conscription, said Ronald Reagan in 1979, "rests on the assumption that your kids belong to the state. . . . That assumption isn't a new one. The Nazis thought it was a great idea." The following year, in a speech at Louisiana State University, Reagan added:
I oppose registration for the draft . . . because I believe the security of freedom can best be achieved by security through freedom. The all-voluntary force is based on the sound and historic American principle of voluntary commitment to defense of freedom. . . . The United States of America believes a free people do not have to be coerced in defending their country or their values and that the principle of freedom is the best and only foundation upon which a defense of freedom can be made. My vision of a secure America is based on my belief that freedom calls forth the best in the human spirit and that the defense of freedom can and will best be made out of love of country, a love that needs no coercion. Out of such a love, a real security will develop, because in the final analysis, the free human heart and spirit are the best and most reliable defense.
In late 1814, fearing that conscription was about to come to America, Daniel Webster delivered a stirring speech against it on the House floor. (Webster served for many years in both the House and the Senate, and he held the office of secretary of state in both the early 1840s and early 1850s.) Webster's belief in a strong central government made his words against the draft all the more striking. "Where is it written in the Constitution," he demanded, "in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?" The draft was irreconcilable with both the principles of a free society and the provisions of the Constitution. "In granting Congress the power to raise armies," Webster explained, "the people have granted all the means which are ordinary and usual, and which are consistent with the liberties and security of the people themselves, and they have granted no others. . . . A free government with arbitrary means to administer it is a contradiction; a free government without adequate provisions for personal security is an absurdity; a free government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous and abominable that ever entered into the head of man."