What’s next?
Congress may order you to buy a bicycle, an electric car, or a subscription to
NPR. Or a gun, an American-made car, or corporate bonds of a weapons
manufacturer!
I.
“Conservative”
Chief Justice Roberts has interpreted the Constitution as giving unlimited
power to Congress, as long as the statute is framed as a tax. Consider what
Congress can now mandate that you purchase, as long as they attach a penalty
that the Supreme Court can construe as a tax (and even if Congress and the
President strenuously deny it is a tax).
First, for my
liberal friends, who want healthy Americans, a clean environment, and a
well-informed public, here are some mandatable purchases: a bicycle. An
electric car. A subscription to NPR. Corporate bonds issued by
government-certified recyclers or clean-energy producers, up to 10 percent of
the taxpayer’s income for levels above $100,000 per year. Compensation for
carbon use above a certain minimum. Solar panels, or insulation, if one is a
house-owner. This is merely suggestive, but none of these are so different from
health insurance, or Social
Security, for that matter, which is also built on the “taxing power” of Art
I, Sect 8. In all these examples, a case can be made that the vast majority of
Americans ought to purchase these things. Mandate them! Just as with health
insurance, the penalty can be seen as “a tax on those without x.”
Happy, liberals?
Well, don’t forget that government has a nasty habit of falling into
conservative hands. Conservatives love to use the powers bequeathed them by
prior administrations, just as liberals do. So expect that you may be ordered to buy: a weapon or weapons to defend your home,
and an annual quota of ammunition (after all, it’s an American tradition, and
target practice is needed: heck, this can fall under the militia power too). An
American-made American flag, at least 8 feet by 12 feet. This will stimulate
the economy. Hey, an AMERICAN-made car! (Or any American-made manufactured
object we can still find.) War-bonds, up to 10 percent of the taxpayer’s income
for levels above $100,000 per year. These will support the war on terror, the
war on poverty, and the government’s efforts to promote a “business-friendly
ownership society.” Corporate bonds issued by government-certified weapons
producers and security companies! After all, it is every American’s duty to
help keep our country safe! The health freeloaders who go without insurance and
then get the rest of us to pay for their heart operations are the same as, or
worse than, the security freeloaders who refuse to pay any extra for the war on
terror, but reap the benefits of working in peace and security, right? Perhaps
you get the picture, my liberal friends?
And let’s not
forget the ratchet effect: government programs don’t die because the “other”
party gets into power—no, the “other party” simply enacts its favorite
programs, and leaves the existing ones in place.
Now our debt will
really soar—oh wait, this new power can be used to order all Americans to buy
U.S. government debt! It will be a “tax on non-contributors to government
debt.” Now we will really “owe it to
ourselves!”
II.
But, this is a
legitimate way to look at the Constitution, right? After all, somewhere the
Constitution gives Congress the “power to tax.”
Let’s consider
that argument. Here is the Constitution, Article I, Section 8,
which begins “Congress shall have power…”
At the beginning of
this section are the power to tax and to “provide for the common defence and
general Welfare” and at the end is the “necessary and proper” clause. But do
these give Congress power to do whatever it chooses?
No one thought so
for over a century. Why not? Notice the list of “enumerated powers” in the
middle here. Do these have any meaning? The very existence of a reasonably long
list of powers strongly implies that they, and what is clearly implied in them,
are the only powers “Congress shall have,” and the general language at the beginning
and end is only meant to explain the enumerated powers. (Exception: a few other
minor powers here and there explicit in other articles or sections.) Otherwise,
the whole of Article I would read, “Congress shall have power to enact
legislation for the common defence and general Welfare of the United States.”
Period. If the Founders had meant by the preamble to grant this full power,
there was no need to waste ink explaining what some and only some of the
individual powers under that wider power were, and, it would confusingly
suggest that the enumerated powers limit Congress. Of course, they were
immediately seen and interpreted by everyone to limit Congress’ power—to
themselves. Otherwise they are redundant, senseless, and completely misleading.
To support this,
consider the Federalist Papers,
written (mostly by Hamilton and Madison) to persuade New Yorkers to ratify the
Constitution (they nearly failed).
Read no. 33, where
Hamilton describes how the “necessary and proper” clause refers only to the “declared”
powers, such as taxation. As with “all other powers declared in the Constitution” (emphasis added), this clause simply
states, according to Hamilton, the laws “necessary and proper” may be passed “for
carrying into Execution the foregoing Powers, and all other Powers vested by
this Constitution.” He continues, “And it is EXPRESSLY to execute these powers
that the sweeping clause, as it has been affectedly called, authorizes the
national legislature to pass all NECESSARY and PROPER laws. If there is any
thing exceptionable, it must be sought for in the specific powers upon which
this general declaration is predicated. The declaration itself, though it may
be chargeable with tautology or redundancy, is at least perfectly harmless.” In
other words, the “necessary and proper” clause, according to Hamilton,
authorizes only laws to execute “powers declared
in the Constitution.”
Now find
Federalist Papers no. 41 in the link above, Madison’s “General View of the
Powers Conferred by The Constitution.” Here is Madison (in paragraph 21) on that introductory clause
of Article I, Section 8: “Some, who have not denied the necessity of the power
of taxation, have grounded a very fierce attack against the Constitution, on
the language in which it is defined. It has been urged and echoed, that the
power ‘to lay and collect taxes, duties, imposts, and excises, to pay the
debts, and provide for the common defense and general welfare of the United
States,’ amounts to an unlimited commission to exercise every power which may
be alleged to be necessary for the common defense or general welfare.” That is
the belief often urged today, right? Madison’s next sentence heaps scorn on the
idea: “No stronger proof could be given of the distress under which these
writers labor for objections, than their stooping to such a misconstruction.”
He spends the next three paragraphs dismantling this notion, and urging
Americans not to worry that such an obviously false interpretation will ever
prevail. Remember, this is how supporters
of the Constitution presented it to the public.
Another piece of
evidence that these articles limit the power of Congress to what they themselves
clearly state, as far as the Constitution has always been understood, is the
existence of the whole “commerce clause” jurisprudence: the attempt to tie this
or that law to the power to “regulate commerce…among the several States.” If
the Congress could simply say that it was legislating “for the general Welfare”
it would never have needed to cite the Commerce Clause. Any law that failed to
be supported by the Commerce Clause could have fallen back on the general
Welfare clause.
