In his second inaugural address, President Obama had this to say about the Constitution:
Being true to our founding documents does not require us to agree on every contour of life. It does not mean we all define liberty in exactly the same way or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time, but it does require us to act in our time.
Whatever any of this may mean, one thing is certain: There is a grave contradiction between the president’s duty to defend the Constitution and his administration’s lack of concern over its limits on federal power. That contradiction should be a major vulnerability. It is one that conservatives have failed to exploit.
I say the vulnerability is a major one because the American people share the premise that constitutions are important and that ours is great and it must be obeyed. From the 1930s to this day, liberals have held a vision of a powerful national government as the main vehicle for “collective action.” Though the liberal elites started losing interest in the Constitution a hundred years ago, and even nowadays many of them would be happy to put the quaint document behind us altogether, most Americans of the liberal persuasion don’t agree. Rather, most left-leaning Americans simply believe that there is no conflict between pervasive national government and the Constitution.
But the conflict is there, and it’s unavoidable.
The federal government as we know it today is only “constitutional” if the federal government has the power to regulate all economic activity. But if the federal government has the power to regulate all economic activity, then our Constitution is not one of limited and enumerated powers. If liberals are right, not only is the Tenth Amendment meaningless, but there must also be no meaning in the phrase “among the several states” as a qualifier in the power “to regulate Commerce . . . among the several states.” And virtually all the other powers which the Constitution confers on Congress – the power to establish post offices, determine weights and measures, etc., – are also meaningless because Congress can do all of that if it has an unlimited power to regulate all economic activity.
The Supreme Court blew the lid off the concept of limited and enumerated powers with Wickard v. Filburn (1942). But it has never admitted that. The Court has always insisted that the distinction between national and local economic activity is the effective limit on Congress’s power to regulate commerce “among the several states.”
Conservatives have long argued that this is mere lip-service, and that by 1942 the Court had abdicated its role as guardian of the Constitution’s limits on federal power. Around the time of the Supreme Court’s oral arguments in Obamacare last spring, the Obama administration revealed not just that it agrees with conservatives on this point, but that it believes the Court’s abdication was a good thing! That was the deeper meaning in the administration’s insistence that the Court had no business striking down a federal regulation of any economic activity.
Conservatives reacted by asking, “If Congress can regulate all economic activity, even non-activity, what can’t Congress regulate?” At the Supreme Court, the government had no answer to this question. In the court of public debate, the administration didn’t even try to answer it.
Alas, once the Court’s confused and confusing decision was announced in the summer, conservatives almost seemed to drop the question. That was a big mistake. They should have insisted and kept insisting on an answer. They should have made every effort to force the administration into a real intellectual debate about how on earth they can possibly square their vision of federal power with the framework of limited and enumerated powers which we all agree is the essence of our Constitution.
If the administration is serious about ending partisan bickering, it should make a real effort to address the contradiction conservatives see between the oath to protect the Constitution, and policies and statements that clearly evince a breezy disregard for what the Constitution actually says. Just because some collective action is necessary doesn’t mean that government should do it. It especially doesn’t mean that the federal government should do it. And it most especially doesn’t mean the federal government should do it when half the people think it would be unconstitutional.
Conservatives’ opposition to the expansion of federal power is not ideological. It is pragmatic and principled, rooted in both practicality and the observation that our Constitution is one of limited and enumerated powers for the federal government, and is not sustainable otherwise. Collective action should be done by private institutions when possible, and by government only when necessary. It should be done at the local and state level when possible and at the federal level only when necessary. And it should not be done at all, no matter how desirable, when it would be unconstitutional.
The president is sworn to uphold the Constitution and defend it against all enemies. That oath defines his power – he has no legitimate power except within the confines of that oath. Conservatives need to do a much better job of holding him to it – not least because most Americans strongly agree that he should be held to it.
– Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.