Power, Privacy, and the U.S. Constitution

Tuesday, July 31, 2018
Hall of the States (FOX News)
Washington, DC

President Donald Trump has recently nominated Brett Kavanaugh to the U.S. Supreme Court, setting off another predictably partisan battle over a Supreme Court nominee.

One thing we won’t get is a justice that rules according to the text of the Constitution, since the Federal Government exercises powers so wildly beyond the scope of the constitution, that any attempt to enforce the document as written would set off a constitutional crisis.

The Tenth Amendment to the Constitution states,

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.

The powers delegated to Congress are enumerated in eighteen points in Article I, Section 8, including the power to “lay and collect taxes”, “borrow money”, “establish post-offices”, “declare war”, and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”.

It’s the last item, number 18, the “necessary and proper clause”, which has historically been used to justify the ever-expanding scope of Congressional legislation. Alexander Hamilton famously invoked it to justify chartering a national bank. The word “bank” appears nowhere in the list, but since “coin money” and “borrow money” are there, Hamilton argued (successfully) that a national bank would be “necessary and proper for carrying into execution” those powers.

Number 3, the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” was given a broadly expansive reading during the New Deal, the Court holding in United States vs Wrightwood Dairy Co,

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.

Does your dairy sell milk and eggs? Are milk and eggs traded in interstate commerce? If a customer buys local milk and eggs, does that diminish the need for interstate commerce in milk and eggs? Thus we get the Agriculture Adjustment Act.

Of course, these expanded government powers don’t just appear at random. That particular expansion of Federal power was fueled by a slight hiccup known as the Great Depression. But though the crisis passes, the expanded powers always seem to remain.

Do you conduct interstate commerce over the Internet? Are interstate products advertised on television? Do cell phone signals cross state lines? Thus we obtain the Federal Communications Commission, despite the fact that the U.S. Constitution grants the Federal Government no authority to regulate communications in any form. None. Yet the federal government currently mandates that telecommunication providers implement a covert wiretapping capability to be used at the government’s discretion.

If the commerce clause can be used to require telephone companies to provide wiretapping capability to the police, can it require computer manufacturers to provide built-in surveillance capabilities on PCs? Only for use with a search warrant, of course. Without explicit constitutional provisions for these rights and powers, who is to define their limits?

Nor is there any explicit constitutional power to regulate factories (the EPA), nuclear power reactors (the NRC), agriculture (an entire government department), recreational or pharmaceutical drug use (the DEA), etc.

Nuclear power reactors, you ask? Surely we need government regulation of something as dangerous as a nuclear reactor? What about Three Mile Island? Chernobyl? Fukashima Daiichi?

There may be great wisdom in government regulation of nuclear power, but there is nothing about it in the U.S. Constitution, and therein lies the rub. Politicians of both parties have found it more convenient to simply ignore the document, bolstered by lofty principles such as “privacy” and “liberty”, or serious problems such as pollution and drug abuse, rather than slog through the arduous process of amending it, and have increasingly preferred government according to popular wisdom rather than government restrained by constitutional law.

It is now quite common to read references to “the long-standing, well-established constitutional right to privacy” [https://nwlc.org/resources/roe-v-wade-and-right-abortion/], usually in regard to abortion, despite the absence of the word “privacy” anywhere in the document. The constitutional right to privacy actually predates Roe v. Wade. In 1923, the Supreme Court struck down a Nebraska law prohibiting the teaching of foreign languages until ninth grade, and a few years later struck down an Oregon law mandating that all children attend public schools, reasoning that:

[liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Many states, in the first half of the twentieth century, tried to regulate or outright ban the use of contraceptives. For the Warren Court, it was too much. In Griswold v. Connecticut, the court used an expansive reading of the Fourteenth Amendment phrase “[N]or shall any State deprive any person of life, liberty, or property, without due process of law” to strike down Connecticut’s ban on contraceptives, and a few years later extended this privacy right to include abortions.

Those who eagerly await eroded privacy rights to ban abortion might pause to remember that states have tried to ban private religious schools in the past, and that those same privacy rights have been used to guarantee parents the right to a Christian education for their children, even though neither abortion nor education are explicitly mentioned in the Constitution.

Consider immigration. Did you know that the U.S. Constitution gives the Federal Government no power to regulate immigration? Article 1, Section 8 gives Congress the power to regulate _naturalization_, but not immigration. In fact, for the first hundred years of America’s existence as a nation, immigration was a state-level function. Only after the Civil War did Congress pass the first federal immigration acts. It wasn’t until 1876 that the Supreme Court held that immigration was a federal power.

Nor is this situation as outlandish as it might seem. The United States, prior to the Civil War, handled immigration much as the European Union handled it prior to the Schengen Agreement. I’m old enough to remember traveling in Europe prior to the Schengen Agreement; you had to show your passport every time you crossed a national border. Italy, Germany, and France all set their own immigration policies, and there wasn’t enough illegal immigration between them to require any kind of wall. The Communist countries needed a wall, of course, but the western European states maintained separate immigration policies with no walls.

So, if we were to return to a strict interpretation of the U.S. Constitution, it would end the sanctuary cities debate. California would have the power to set its own immigration policy.

This has progressed to the point where we now have a federal work permit, in all but name, in the form of the Social Security card. I was required to show my Social Security card the last time I got a job, how about you? Let’s see, the Commerce Clause regulates commerce with foreign nations, which includes the immigration of foreign nationals, who can be denied the right to work, and since you can’t tell who is and is not an immigrant, there would be no point in requiring work permits only from immigrants, so it’s “necessary and proper” to issue work permits to American citizens and require us to present them anytime we accept an offer of employment.

These kind of considerations fuel my cynicism of American politics. Of the people advocating for limited federal government and strict constitutional rule, I wonder how many of them would support returning immigration power to the states? Abolishing ICE? No more work permits? I rather suspect that people advocate for limited government when they want freedom for themselves, but they’re all for expansive government when it is to be applied to others.

The most famous modern critic of these expanded, extra-constitutional rights and powers was the late Robert Bork, who equated the process to that of jury nullification, and advocated instead a strict interpretation of the law as written. His comparison to jury nullification seems especially apt. If the Supreme Court can read the word “liberty” to include contraceptive drug use and foreign language education, why should an attorney not be allowed to argue to a jury that “liberty” should also encompass recreational drug use?

Of course, the most dramatic failure of the Constitution was the absence of any provision for states to leave the federal union, or any explicit prohibition of secession. “Brexit” will occur in a fairly organized manner thanks to Article 50 of the Treaty on the European Union, which provides for the withdraw of E.U. member states. No civil war is required to leave the European Union.

Nor was there any impetus, post-war, to amend the Constitution to correct this ambiguity. The war had been fought, after all, on the premise that there was no ambiguity. Yet it’s hard to imagine that any war would have been fought at all had the United States Constitution included similar text as Article 50 in the E.U. Treaty:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

Of course, many people argued that the reserved powers clause in the Tenth Amendment reserved to the states the right of withdrawal from the Union, and I agree. Not only that, but many of the votes to ratify the Constitution were quite close: 187-168 in Massachusetts, 57-47 in New Hampshire, 89-79 in Virginia. It’s hard to imagine that the Constitution could have been ratified at all if it had included a explicit prohibition on secession.

See, the Union cause was illegal, but just. The Confederate cause was legal, but unjust, and therein lies the rub. The Confederate States claimed the freedom to leave the Union, but for what purpose? To enslave four million of their own people, ostensibly because of the color of their skin, but more realistically because they wanted to sip lemonade on their verandas, while the slaves picked cotton under the harsh sun.

Limited government is not the panacea that conservatives make it out to be. Freedom is not an absolute good. It has to be used consciously for good, and can just as easily be used for evil. Every murder, every rape, every theft was enabled by the freedom of the criminal.

Those who advocate for limited government often lose sight of a fundamental truth. Limited government only works in a society that is basically righteous. A society dominated by greed and oppression, on the other hand, will produce an unending string of abuses that will be countered by an unending series of calls for more government solutions. Limited government then just lets wicked people get away with evil.

Perhaps it was foolish to ever think that a piece of parchment in the National Archives could ever restrain the power of government, or to think that limited government could ever endure in a society committed to institutions like slavery and segregation. We see something similar happening with capitalism today. One group in our society glorifies greed and demands limited government so that they can keep lining their own pockets, while their opponents keep trying to expand the scope of government in order to restrain them.

So will not be getting any Supreme Court nominees, from Democratic or Republican administrations, who are committed to interpreting the Constitution as written.

Instead, we’ll get popular government, but not Constitutional government. We’ll get justices that rule based on their own conceptions of what proper government should be, rather than the text of the U.S. Constitution. The President will nominate judges whose conception of government meshes with his own, and the two dominant political parties will battle over the nominees in the Senate, each trying to shift the ideological balance of the court in their own favor. Shifting it back to strict constitutional rule is a motion that will not be entertained.

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