Nullification: How to Resist Federal Tyranny in the 21st Century
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Let’s consider the “general welfare” clause first. We read in Article I, Section 8 of the Constitution that Congress “shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”2 Does this mean the federal government has the power to implement any measure it thinks will redound to the general welfare? When Anti-Federalist opponents of the Constitution pointed to this clause with alarm, warning that the new government could thereby exercise whatever power it wanted on the grounds that it somehow promoted the general welfare, the Constitution’s supporters assured them that such fears were unfounded. The federal government, they said, had only those powers expressly delegated to it.
James Madison was particularly adamant. The very structure of Article I, Section 8 of the Constitution, he said, ruled out such an interpretation. If the general welfare clause granted the federal government a general power to do anything that might advance the general welfare, why did this section of the Constitution then bother to list specific powers the government could exercise? Wouldn’t these specifics have been superfluous and absurd, on the heels of a general grant of power that obviously included the powers that followed and made their enumeration unnecessary? There is no point, in other words, in specifically declaring (for example) that the federal government shall have the power to erect “needful Buildings” immediately after saying it may do anything at all it thinks will advance the general welfare. Thus Madison wrote in Federalist #41, “For what purpose could the enumeration of particulars be inserted, if these and all others were meant to be included in the preceding general power?” In 1792, he said:
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.3
In other words, activities of the federal government that we have been taught to consider perfectly unobjectionable were, to Madison, clear and obvious violations of the Constitution that derived from a dishonest reading of the general welfare clause.
This remained Madison’s view throughout his life. “In its fair and consistent meaning,” he wrote in 1800, “[the general welfare clause] cannot enlarge the enumerated powers vested in Congress.”4 Madison was saying the same thing in the 1830s, noting that “it exceeds the possibility of belief” that supporters of limited government “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”5
Madison also noted that, of all the amendments the states proposed to limit the power of the new government shortly after they ratified the Constitution, not one sought to circumscribe the power of Congress under the general welfare clause—even though, if the expansive reading of the clause were correct, it was “evidently more alarming in its range, than all the powers objected to put together.” Had the general welfare clause been understood to grant an unspecified reservoir of powers to the federal government, in other words, early Americans suspicious of government power would obviously have objected to it. People understood that the general welfare clause—which had also appeared in the Articles of Confederation—did no such thing. “It was taken for granted,” said Madison, “that the terms were harmless; because explained & limited, as in the ‘Articles of Confederation,’ by the enumerated powers which followed them.”6
This was Jefferson’s view as well. To interpret the words “general welfare” as granting the federal government “a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.” Such a reading, furthermore, “would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”7
Every tyrant claims to be advancing the general welfare. Having just fought against a government that claimed an undefined reservoir of powers, Americans would not have granted such a reservoir to their own government. If anything, the general welfare clause was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.8
It might be objected that Alexander Hamilton, the country’s first secretary of the Treasury, took a different, more expansive view of the clause. Of that there is no doubt. But we may question how much weight Hamilton’s position should carry. For one thing, prior to New York’s ratification of the Constitution, Hamilton noted in Federalist #17 and #34 that the clause did not mean that an area like agriculture would come under the purview of the federal government.9 But having given the people that assurance, Hamilton then declared, several years after the Constitution was ratified, that the clause did mean agriculture could be directed by the federal government.10 Which of these opinions is more weighty: the one intended to explain the Constitution’s intent to the people as they were deciding whether or not to ratify, or the opposite opinion given suddenly and after the people’s decision had safely been made?
If we wish to cite Hamilton as a source, we might, while we are at it, quote from his remarks to the Constitutional Convention to the effect that the United States ought to have a president for life; a Senate whose members, appointed by the president, would serve for life; and state governors appointed by the president. We might likewise cite his view that the British government, which he hoped his own might come to resemble, was the best in the world. Finally, we could cite Hamilton’s own admission that he was very much out of step with the rest of the Constitution’s drafters. Then we might fully assess the relevance of Hamilton’s views of the general welfare clause.
The Constitution’s commerce clause declares that Congress will have power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It is the part about regulating commerce “among the several States” that has caused the mischief. As with the general welfare clause, the original understanding of the commerce clause—the understanding that informed the decisions of the ratifying conventions, and thus the interpretation to which they believed they were committing the American people—is not so hard to uncover. “Commerce” meant only trade or exchange—not, as its more ambitious interpreters have tried to claim, all gainful activity.11 No reference to commerce at the Constitutional Convention, in the Federalist, or at the state ratifying conventions encompasses anything else. “Among the several States” meant exactly that: commerce between one state and another, not commerce that might happen to have an effect on another state.12 For that matter, “regulate” in the eighteenth century meant to “make regular”—that is, to cause to function in a regular and orderly manner—as opposed to the word’s modern meaning that suggests micromanagement and control. (This is the sense in which the Second Amendment’s “well-regulated Militia” is to be understood, for example.) Thus, the purpose of the commerce clause was to establish a free-trade zone throughout the United States (thereby making commerce regular), and prevent states from disrupting the free movement of commerce. That was certainly how James Madison understood and explained it: “‘Among the several states’…grew out of the abuses of the power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States
themselves, rather than as a power to be used for the positive purposes of the General Government.”13
By the nineteenth century, the Supreme Court was already pretending the commerce clause extended federal authority over commerce that merely affected other states. It thereby opened up a potentially limitless field of power to the federal government, since practically anything can be said to “affect” anything else in some way. By the twentieth century this had become a “substantial effects” rule, but in practice it still allowed the federal government to control whatever it wanted. Thus the federal government claimed the power to regulate the wages of a janitor in a building whose occupants happened to be engaged in interstate commerce. In Wickard v. Filburn (1942), the Court ruled that the federal government could regulate the amount of wheat grown on an individual’s farm even though the wheat never left the state, and the farmer and his livestock consumed it themselves. Had they not grown and consumed that wheat, the argument went, they might have purchased it from another state, and hence their abstention from this purchase indirectly affected interstate commerce.
Following the upheavals of the New Deal Court in the late 1930s, the Supreme Court did not challenge the federal government’s “commerce clause” claims by declaring even a single federal law unconstitutional on those grounds—until the anomalous 1995 case of U.S. v. Lopez. That case involved the federal Gun Free School Zones Act of 1990, which made it a federal crime to carry a firearm into a school zone. Some forty states already had similar legislation restricting guns in school zones on the books at the time this federal law was passed. Alfonso Lopez, Jr., who was convicted of violating the Act, objected that the federal government had had no constitutional authority to enact the law in the first place. The federal government argued that the potential presence of guns in schools would make students nervous, that nervous students would learn less and thus acquire an inferior education, that people with inferior educations would contribute less to the U.S. economy, that contributing less to the U.S. economy would have a substantial effect on interstate commerce, and that therefore the question of guns in schools could be regulated by the U.S. government. This line of reasoning, although not significantly more absurd than the federal government’s commerce-clause justifications for many other laws, was too much even for the normally indulgent Supreme Court. But even here, with the exception of Justice Clarence Thomas, no one on the Court challenged the “substantial effects” rule itself; the Justices merely claimed that the federal government had not shown substantial effects on interstate commerce in this particular case. And although supporters of centralized government feared (and opponents hoped) that Lopez would serve as a precedent for the future, pushing the federal government back toward an honest interpretation of the commerce clause, no such thing occurred.
Meanwhile, the federal government has been extending its authority over countless areas of American life on the grounds (when indeed it bothers justifying itself at all) of flimsy to nonexistent connections to interstate commerce.
Finally, we come to the “necessary and proper” clause, which social studies teachers around the country cite to this day as an “elastic clause” that permits the federal government to exercise a broad array of powers not mentioned in the Constitution. The clause declares that Congress shall have the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.” Given the Framers’ assurances about the limited nature of the government they were creating and their repeatedly expressed fears of unlimited government, we must look with skepticism at the claim that this or any constitutional clause was designed to be an “elastic clause.” Such a thing would have defeated the purpose the Framers had in mind in drafting a written constitution.
A review of the statements of the Framers and ratifiers regarding this clause confirms our initial skepticism. Of course, it was not designed as an “elastic clause,” an invitation to tyranny that would have horrified just about everyone. It was intended as a note of clarification only. It meant not that the federal government was thereby granted an array of unspecified powers, but that the government could perform simple tasks that were clearly incidental to carrying out its enumerated powers. Thus the power to erect “needful Buildings” would, by direct (rather than fanciful) implication, involve a power to purchase lumber for this purpose.
It is not difficult to uncover evidence of this broad consensus. The state ratifying conventions are full of assurances about the innocuous nature of the clause. Thus, in Virginia, George Nicholas said “it was no augmentation of power,” and Madison said the clause “gives no supplementary powers.” Archibald Maclaine said in North Carolina that “the clause gives no new power.” In Pennsylvania, Chief Justice Thomas McKean explained that it “gives to Congress no further powers than those enumerated.” James Iredell said the same thing in North Carolina.14
This is the clause that our textbooks expect to carry the burden of explaining how our government could have grown to such proportions without violating the Constitution. What history shows, on the contrary, is that eminent Americans, even those who favored a powerful central government, agreed that the Constitution would have been exactly the same had this alleged elastic clause never been written. Even Alexander Hamilton noted that the Constitution would have been in no way different had this clause not been included at all. “It may be affirmed with perfect confidence,” wrote Hamilton in Federalist #33, “that the constitutional operation of the intended government would be precisely the same” if the “necessary and proper” clause were “entirely obliterated.”
“In sum,” writes Harvard’s Raoul Berger, “the records make plain that the necessary and proper clause was merely designed to specifically authorize the employment of means to effectuate, to carry into execution, granted powers, not to augment them; and they strongly read against the doctrine of implied powers.”15
This interpretation of the “necessary and proper” clause continued to be insisted upon in the years following ratification of the Constitution. Jefferson defended this view in 1791, pointing out that necessary meant necessary, not merely “convenient” governments will always find their oppressions convenient.16 St. George Tucker, the great judge and law professor who wrote the highly regarded View of the Constitution of the United States (1803), echoed these sentiments.17 So did political thinker and U.S. senator John Taylor, Judge Spencer Roane, and a great many others.18 James Madison wrote in 1800 that this interpretation of the clause is “precisely the construction which prevailed during the discussions and ratifications of the Constitution.” It “cannot too often be repeated,” he continued, that this limited interpretation is “absolutely necessary” in order for the clause to be compatible with the character of the federal government, which is “possessed of particular and defined powers only” rather than “general and indefinite powers.”19
Thus the three clauses most frequently abused on behalf of a central government of unlimited powers not only fail to support any such thing, but mean pretty much the opposite of what politicians and judges have tried to tell us they mean. The Tenth Amendment to the Constitution—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—in turn makes clear that broad constructions of these phrases, by which the federal government arrogates to itself an array of additional, unspecified powers, are inadmissible. Here, in this crucial amendment, was explicit recognition of what the Federalists themselves had insisted was already implicit in the Constitution as drafted. The Tenth Amendment was the written guarantee of the central principle that state ratifying conventions had been assured of as they were being urged to approve the Constitution: the proposed federal government will have only those powers granted to it and no others.
The various attempts to evade the T
enth Amendment’s clear meaning over the years, and particularly since the 1940s, must be counted to the great intellectual discredit of those advancing them. In U.S. v. Darby (1942), the Supreme Court tried to describe the Amendment as a mere “truism,” no more interesting than the tautological statement that all bachelors are unmarried. Left unexplained was why so many of the original states would have vigorously demanded the inclusion of a mere tautology, why the country’s legal history would be replete with references to a tautology, or why Jefferson would have described a tautology as the cornerstone of the Constitution.
Another claim is that the Tenth Amendment was, in fact, meant to allow the federal government greater flexibility than so-called strict constructionists of the Constitution will admit. After all, the argument goes, while the Amendment says the federal government will have those powers “delegated” to it, it does not say “expressly delegated.” This failure to include the word “expressly” has been cited as evidence that Congress was intended to possess a broad array of additional powers beyond just the ones specifically enumerated in Article I, Section 8. After all, the Articles of Confederation had used the word “expressly,” so its absence in the Tenth Amendment had to be a deliberate omission.
This argument is exploded at once when we examine the state ratifying conventions, which each state held individually and to which it elected delegates who were given the task of deciding whether to adopt the Constitution. Time and again, the Constitution was portrayed by its supporters as granting only those powers that the states “expressly delegated” to it. That means the states themselves entered the Union with the express assurance that this was how the Constitution would be understood. It is this that matters to constitutional interpretation: what were the people themselves told about the document they were to ratify?