It’s no secret that politics in the United States is growing increasingly acrimonious — to the point that a 2022 poll found 43% of Americans think a civil war is a least somewhat likely in the next decade.
But here’s what few people realize: The intensity of our division springs from a federal government operating far beyond the limits of the Constitution — fueling a fight for control over powers that were never supposed to exist at the national level.
To put it another way, if the federal government were confined to its actual granted authorities, federal elections would be of little interest to the general public, because the outcome would be largely irrelevant to their everyday lives.
America’s founders drafted the Constitution with great trepidation. Having just escaped British tyranny, the people of the separate states that would comprise the proposed union were wary of centralizing too much power at the federal level, and thus sowing the seeds of a new tyranny.
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They therefore set out to create a federal government to which the states delegated only certain limited powers, with all other subjects of governance reserved to the states.
Those powers — only 18 of them — are listed, one by one, in Article I, Section 8 of the Constitution. They include such things as the power to raise armies, maintain a navy, declare war, borrow money, coin money, establish punishments for counterfeiters and pirates, set standards of weights and measures, secure patents and establish post offices.
Reassuring those who were considering the enormously consequential decision of whether to ratify the Constitution, James Madison wrote,
“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. [Federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”
To win over those would-be ratifiers who still feared the proposed federal government would undercut state sovereignty and infringe individual liberties, ten amendments were drafted — the Bill of Rights. The 10th Amendment codified Madison’s previous assurance about the division of authorities between the federal and state governments:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
We arrive then at a hard fact: Today’s sprawling federal government, which involves itself in almost every aspect of daily American life, is almost entirely unconstitutional.
To rattle off just a random fistful of the federal government’s unauthorized undertakings and entities — brace yourself — there is zero constitutional authority for the Social Security, Medicare, federal drug prohibitions, the Small Business Administration, crop subsidies, the Department of Labor, automotive fuel efficiency standards, climate regulations, the Federal Reserve, union regulation, housing subsidies, the Department of Agriculture, workplace regulations, the Department of Education, federal student loans, the Food and Drug Administration, food stamps, unemployment insurance or light bulb regulations. Even that sampling doesn’t begin to fully account for the scope of the unsanctioned activity.
Don’t let your affinity for any of those enterprises short-circuit your intellectual honesty: Even if you view some of them as benign, that doesn’t render them constitutional. And if you’ve ever invoked the Constitution to spotlight a different kind of government overreach, it would be hypocritical to nod approvingly when it’s violated in ways where you deem the result beneficial.
So how did we get to this place where the intended relationship between federal and state powers has been completely inverted — with a federal government wielding powers that are now “numerous and indefinite” rather than being “few and defined”?
Much of the current state of affairs has been driven by the Supreme Court’s extreme and expansive interpretations of certain clauses of the Constitution. Among the most significant are the General Welfare and Commerce clauses.
The General Welfare Clause, found at the start of Article 1, Section 8, says:
The Congress shall have 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…
Embedded in a clause focused on the power to tax, the words “general welfare” were meant to ensure that Congress’s taxation and spending would be confined to purposes that were broadly beneficial, rather than catering to narrow or localized interests.
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The clause’s language was copied from the Articles of Confederation, where, as Madison explained, “it was always understood as nothing more than a general caption to the specified powers.” Indeed, he said, it was copied for the very reason that its prior use and understanding would hopefully minimize the risk of it being misinterpreted as a grant of power.
It flies in the face of reason that the drafters of the Constitution would take pains to carefully list the Congress’s specific authorities, yet simultaneously say Congress could also do anything it thinks generally beneficial.
Countering those who sought to interpret the clause that way, Thomas Jefferson wrote, “To consider the…phrase…as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”
Clearly, based on context and history, those two words, general welfare, do not bestow an authority. Indeed, they’re present to limit an authority — the power to tax and spend.
The forces seeking to reshape the federal government by exploiting those two words were held at bay, but only for so long. In 1937, the Supreme Court used the imaginatively expansive interpretation of the General Welfare Clause to turn back a constitutional challenge to the Social Security Act — and to set a precedent that would fundamentally change the nature of our federal government.
