Federalist 41-44: The limits of enumerated powers vs. the limits of the written word

Uh-oh.
 
Through the first 40 chapters or so of “The Federalist Papers,” it’s been pretty easy to read the words of Hamilton, Madison and Jay with a liberal’s eyes. In the battle between those who want an energetic government capable of acting for the common good and those who want a national government shackled into near-inefficacy, these guys seemed pretty clearly to be on the former side. The Constitution was a strengthening and centralizing of the powers of national government, after all; to the extent we’ve talked about limits so far, it’s usually been an eye-rolling bone thrown in the direction of the Antifederalists. The limits were (nearly) incidental. The power was the thing.

Until now.

It’s not so much that Federalists 41-43 are about the limits of the government’s power as they are a fairly sharp delineation of what the government can actually do. And, well, it’s not much.

James Madison opens 41 with a clear eye on the Antifederalists, and he frames the question of the next few chapters fairly succinctly: “Is the aggregate power of the general government greater than ought to have been vested in it?”

To answer that question, he considers what the general government is supposed to do, and his answer -- it least initially -- is also pretty succinct:

That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.

Item No. 4 caught my eye -- “miscellaneous” can cover a lot of territory -- but it turned out that’s Madison’s way of providing an overview of some of Congress’ more, er, miscellaenous powers: of copyright, over treason, that kind of thing.  There’s no Social Security. No Medicare. No national parks. Not much, in fact, of the stuff that I’m really glad that modern government does. Madison doesn’t say the federal government can’t or shouldn’t do these things. He just kind of sets the parameters.

What am I to make of this? What is anybody who is looking for a firmly grounded Constitutional liberalism to make of this? Do we have to choose between the Constitution and Social Security? Because, in all honesty, one is tempted to look at those two choices and say “The hell with the Constitution.”

But wait. Maybe there’s a sliver of hope here. And it comes in Federalist 44, when Madison attempts to defend Article I, Section 8 of the Constitution—to this day, perhaps, the section that arouses the most controversy in fights between activist government liberals and limited government conservatives.  The clause in question gives Congress 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 this Constitution in the Government of the United States, or in any Department or Officer thereof.

This was already a controversial clause in the 18th century. Antifederalists apparently saw in it the possibility that Congress would overstep its bounds. And by their lights, it probably has been used that way.

Madison answers the charge that the clause is too vague by saying, in essence, that getting more specific -- either by listing more limits to Congress’ power or by providing a specific list of powers Congress could claim to execute the laws of the land -- would inevitably become problematic in the not-too-distant future.

But he runs out of steam, and finally reminds his readers that, ultimately, questions of what to do if the government exceeds its Constitutional power ultimately reside with the people of the United States.

In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives.

In other words, the final arbiter of the Constitution’s meaning isn’t the president or the Supreme Court or Congress -- it’s us.

Madison frames this in negative terms: We voters will set the limits for Congress, and if Congress exceeds those limits, we’ll punish Congress by electing new representatives. But it seems to me it’s possible to frame it in positive terms, as well: If We The People want government to provide Social Security and we’re not willing to punish representatives who give it to us -- in fact, we’ll punish those who threaten to take it away -- well, who is to say we’re wrong?

This is very seductive. And maybe not so different, practically, from the way we run things now. Our politics these last few years haven’t just been about how much we want government to spend or not spend, but about what’s Constitutional or not. That’s involved a lot of push-and-pull, and it’s been very frustrating at times, but one could make the case that citizens really do push back when they feel the government has overstepped its powers. Isn’t that what the Tea Party has been about? Sure, this ends up being messy and frustrating -- but it really does make the Constitution a living document, in the best sense: a constantly renewed guide that is the product of an ongoing conversation between the governed and the government, instead of 10 Commandments handed down from slave-owning demigods who lived hundreds of years ago. (Ones who, incidentally, didn’t always adhere to strict readings of the rules they were given.) I don’t always get the outcome I want, but I feel better if our government is a product of both wise  tradition and modern norms and democratic guidance from the citizenry.

There’s also a danger here, and it gives me pause. Because while I do want the government to provide a social safety need to the poorest and most vulnerable among us, I don’t want it (say) to make torturing people legal through a reading of the Constitution that allows a president to disregard laws and treaties that are the law of the land. I want there to be limits, and those limits are hard to maintain once you start treating the written Constitution as the beginning of the conversation instead of the end. Most Americans, it seems, were fine with a president whose reading of the Constitution let him break laws in wartime. I don’t agree with that. It gets harder to make the case against him if the Constitution is a somewhat fuzzy thing.

On the other other hand: It would appear that the rules for interpreting the Constitution are already fuzzy enough that our previous president got away with his interpretation. And if that’s the case, why the heck shouldn’t I get my safety net in the bargain?

In truth, with the exception of Ron Paul and other hardline libertarians, the rest of us spend so much of our time arguing about what the Constitution allows and what it doesn’t because we have implicilty agreed to let there be a certain fuzziness to the whole project. This isn’t very satisfying, and there’s a real possibility that we end up with the Constitution being whatever I say it is today. But it isn’t. It’s what we say it is today. And that’s the way it probably always has been.

There's a whisper in my ear, though. It's telling me I'm a hack, interpreting the Constitution the way I want against the evidence of my reading. But I'm only halfway through the Federalist Papers. I need to press on before making any final conclusions.