Tuesday, December 14, 2010

Questions and answers

Radley Balko poses a question that I’d like everyone to answer (not just the lefties he poses it to):

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

The Bill of Rights is a series of Amendments; after all. They may have been necessary for acceptance of the document, and do serve to limit government further. Without them, though, are there (meaningful) limits on the power of the federal government?

See Radley for musings on Yes and No. I don’t call myself a libertarian for a variety of reasons (much less a Libertarian), but that’s a matter of philosophy more than anything else.I suspect my views of the limits of government are only a little looser than those of a libertarian, but the libertarian would accuse me of being “a little bit pregnant". Nonetheless, I do believe in (tight) limits on the power of government.

So, since I answered Yes I suppose I should set the limits of the power of Federal government and a test to determine when those limits are crossed, under the Constitution. First, see Article 1, Section 9, which explicitly limits the Legislative Power, and Sec 10, limiting the power of the States. Art 1, Sec 8 delineates the powers of Congress, and consequently by omission, anything not on the list is not within the Federal Government’s power.

The important “omission” clause is the last “directive” one in Art 1 Sec 8: “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” The Federal Government does not have the power of legislation or like authority (regulation) outside of federal land, unless it is pursuant to one of the other clauses. I will grant that the Federal Park system, which was acquired by the consent of the Legislature in the “State in which it be” or was set up in federal territory where there was no State legislature, is a “needful building” for the purposes of this clause – which is one of the points of conflict between myself and a libertarian. Not sure about Federal Land outside of the park system or military bases, but almost all of that is in areas that were federal territories before they were states – perhaps the feds didn’t transfer those bits to the state when the state was organized as such., For more powers granted to the Federal Government in these cases, see Article 4, Section 3, which clearly contemplates the United States owning property that is not organized as Territories.. Likewise, the Interstate system is a Needful Building (particularly given that Congress has the power to provide for the “Common Defense”).

The next most important “omission” clause is: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. If the item or servicein Commerce is not travelling “among the several States”, then the Federal Government has no power over it. Period. The absence of commerce is not itself commerce. Some thing or service possessed by one of the participants in a transaction must have started in one state (or country, or one end must be under the jurisdiction of an Indian tribe) and ended in another for this clause to kick in. Furthermore, transiting across a state would NOT kick it in – if I build my widget in Ocean City MD and ship it by boat to New Castle DE, load it onto a truck and drive it to Hancock MD (possibly passing through VA and even DC, depending on route chosen), this would not be an interstate transaction – though the truck’s trip might be, and the boat trip is almost certainly, even if their cargoes aren’t. (A little bit of thought should show why the conveyance should be considered interstate in these cases).

The negatives of those two clauses should set the limits of federal power pretty clearly, as, in fact, the 10th amendment specifically states, so it’s not like I have a radical idea here. The powers of the Federal Government can, and have been, expanded by Amendment, of course. It’s hard work, but it’s been done.


  1. I will grant that the Federal Park system, which was acquired by the consent of the Legislature in the “State in which it be” or was set up in federal territory where there was no State legislature, is a “needful building” for the purposes of this clause

    I have to mull this over, but speaking as a libertarian who really, really likes the effect of national parks, the idea is very attractive.

    Okay--now libertarianally justify smoking bans! ;)

  2. I can't even justify them as a conservative. That having been said, the feds can enact the on federal property if they like, and the states can do so under the 9th amendment. Unwise policy != unconstitutional, and they're only arguably unwise.

  3. Did you mean the 10th, or am I wildly underinformed about some 9A scholarship? ;)

  4. 10th. The "right to smoke" would be under the 9th.


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