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September 17th, 2010

Strict Constructionist Politicians

By Nathan Tucker

Constitution Day is celebrated on September 17th, the day on which 223 years ago the Constitutional Convention meeting in Philadelphia signed the Constitution and submitted it to the states for ratification.  Delaware became the first state to ratify the Constitution a few months later on December 7th.  It wasn’t until the Constitution was ratified by the ninth state, New Hampshire, on June 21, 1788 that it went into effect.

In the formative years of our early Republic, members of Congress actually deliberated on the extent of their constitutional authority.  Serious and thoughtful debates were had over whether or not Congress could build canals, subsidize cod fishers, give money to refugees of insurrections in San Domingo, or establish a national bank.

Whether or not something was constitutional was extremely important to the generation that gave birth to our country.  Most politicians today, however, lack even a rudimentary understanding of the Constitution or the restraints it places on their power.

For instance, when asked last fall where the Constitution permits Congress to require citizens to buy health insurance, House Speaker Nancy Pelosi was temporarily caught off guard, finally sputtering, “Are you serious? Are you serious?” She then quickly turned to another reporter without further comment.

Another Democrat, Rep. Phil Hare of Illinois, reacted similarly when recently posed that question by one of his constituents: “I don’t really worry about the Constitution on this, to be honest.”

But the first requirement of every member of Congress is to worry about the Constitution and whether it gives them the power to enact the contemplated legislation.  Unlike state governments which generally have widespread authority to regulate, the federal government is made up of limited, enumerated power.

As James Madison noted in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”  To make his point, Madison asked rhetorically in Federalist No. 41, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?”

Alexander Hamilton argued in Federalist No. 84 that a Bill of Rights was unnecessary because the federal government did not possess the power to interfere with any rights in the first place.  “[A] minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.”

He went on to argue that, by enumerating specific rights in a Bill of Rights, the argument could be made that the people felt they were necessary precisely because the federal government possessed the power to infringe them.  “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.

“For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

These limited, enumerated powers given to Congress are found in Section 8 of Article 1 of the Constitution, and to refresh the memory of our federal legislators they are as follows:

  • The 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • To borrow money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • To establish Post Offices and Post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the Supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

For many years now, Republican politicians have clamored for strict constructionalist judges to be appointed to the federal bench.  As laudable as such a goal is, perhaps we should first be seeking strict constructionalist politicians to serve in Congress.  Long before questions over the constitutionality of federal legislation reach the Supreme Court, Congressmen should have wrestled with such questions themselves and be prepared to provide the Court, and their constituents, with their defense.

Though the process will not be easy or quick, We the People have the obligation to elect constitutionally responsible candidates.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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