This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.
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Our Constitution was drafted in 1787 “in Order to form a more perfect Union”—both more perfect than the British tyranny against which the founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence. The result was a vibrant federalist system that gives broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the States to craft innovative policy solutions reflecting the diversity of America’s people, places, and ideas.
Ignoring this carefully calibrated constitutional balance of power, some continue to assert in the courts, Congress, and the media that the federal government lacks the ability to address crucial areas of national policy, including health care reform, civil rights protection, corporate regulation, and environmental protection.
This cramped vision of federal power has no basis in the Constitution’s text or history. From the broad powers first granted to the national government in the 1787 Constitution, to the sweeping enforcement powers added to the Constitution over the last two centuries, our Constitution establishes a federal government empowered to act when the national interest requires a nation-wide solution or when fundamental rights and liberties are infringed.
By the time our Founders took up the task of drafting the Constitution in 1787, they had lived for nearly a decade under the dysfunctional Articles of Confederation. The Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a “firm league of friendship” among thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Under the Articles, Congress had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or legislate upon them; it had no express power to make laws that would be binding in the States’ courts and no general power to establish national courts, and it could raise money only by making requests to the States. This created such an ineffectual central government that, according to George Washington, it nearly cost Americans victory in the Revolutionary War.
Heeding the lessons of the flawed Articles, the framers of our founding charter came to the drafting table with the aim of giving the federal government power to provide national solutions to national problems. In considering how to grant such power to the national government, the delegates adopted Resolution VI, which declared that Congress should have authority “to legislate in all Cases for the general Interests of the Union, and also in those to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.” The principle of Resolution VI was translated into constitutional provisions—specifically, the powers granted to Congress in Article I of the Constitution—affording the federal government the ability to respond to the challenge of governing the new nation.
To be sure, the powers of the federal government under our Constitution are not unlimited. As the 10th Amendment affirms, the Constitution establishes a central government of enumerated powers, and the States play a vital role in our federalist system. But the powers our charter does grant to the federal government are broad and substantial. And, since the Founding, the American people have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the rights and liberties of all Americans. Claims that our Constitution sharply limits the federal government are thus not only inconsistent with the vision of our Founding generation, but also require a form of selective amnesia about the changes made to our national charter by successive generations of Americans.
After fighting a brutal Civil War over the institution of slavery and the Confederacy’s extreme version of states’ rights, “We the People” made our Union—and the federal government—stronger. Rather than tightly confine the powers of the national government, as the Confederacy sought to do, Americans added three constitutional amendments in the wake of the Union’s victory in the Civil War, each designed to give new powers to the federal government to protect the American people. The 13th Amendment abolished slavery—the cornerstone of the Confederacy—striking out of the Constitution the oppressive system that made a mockery of our founding ideals. The 14th Amendment guaranteed all Americans substantive fundamental freedoms and made equality a constitutional right. The 15th Amendment secured the right to vote free from racial discrimination. All three granted broad power to the federal government to ensure that our founding promise of freedom and equality applied to all.
During the Progressive Era of the early 20th century, the American people yet again amended the Constitution to strengthen federal power to act for the general welfare and to secure equal citizenship. The 16th Amendment affirmed that Congress had the authority to impose a progressive income tax, while the 17th Amendment ended the power of state legislatures to appoint U.S. Senators, giving that democratic authority to the people directly. The 19th Amendment affirmed that women had the right to vote, the 24th Amendment abolished the use of poll taxes in federal elections, and the 26th Amendment extended the franchise to voters aged eighteen years or older—and all of these voting rights amendments gave Congress the express authority to enforce their guarantees.
Stated plainly, while some have portrayed the Constitution as a document that is primarily about limiting government, the historical context shows that the Founders were just as, if not more, concerned with creating an empowered, effective national government than with setting stark limits on federal power. And “We the People” have only strengthened that federal power through the amendment process. In the early days of the American Republic, the young nation faced a multitude of difficulties—a woefully underfunded army and navy, uncertain day-to-day funding of the federal government, and disagreements among the States on everything from debt to commerce to meeting treaty obligations. Unfortunately, the nation, then bound by the Articles of Confederation and its ineffectual model of central government, also lacked a national government with sufficient power to address these challenges, which transcended state lines and implicated a national interest the federal government was not yet empowered to protect. Today, our nation faces new problems and challenges that spill across state lines and affect the public interest of the country as a whole. Fortunately, our enduring Constitution conveys ample federal power to address these problems.