Rights, Powers, and Historical Progress

Today at the Cato institute, our founder and president Doug Kendall participated in a panel discussion with Professor David Barron, Ilya Shapiro, and William Mellor about Mellor’s new book The Dirty Dozen, co-written with Robert Levy. The role of originalism—and the notable inconsistency with which it was applied in The Dirty Dozen—played a significant role in the debate, thanks largely to Doug’s critique of the book’s nearly unitary view of the Constitution as a libertarian document and David’s fairly pointed concerns about the book’s implications when it comes to protecting equality and civil rights.

The Dirty Dozen reads a theory of economic libertarianism into the Constitution that ignores much of the document’s text and history. Doug’s textual and historical argument that the arc of history has created an increasingly empowered and vigorous federal government bears repeating here.

1) The Constitution replaced the Articles of Confederation at least in part because the nation demanded a stronger federal government capable of addressing its geostrategic and commercial needs.

2) To say that “the powers of the federal government are strictly enumerated” ignores the simple fact that these enumerated powers are quite broad. The instructions to the Constitutional Convention’s Committee of Detail – the group largely responsible for writing Article I, section 8 – said that Congress was to have authority to “legislate in all Cases for the general Interests of the Union, and also in those Cases 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.”

3) Alexander Hamilton’s philosophy of an energetic and powerful federal government largely carried the day in the Washington administration and in Supreme Court cases like Gibbons v. Ogden and McCulloch v. Maryland.

4) The Union was briefly dissolved by, and barely survived, a bloody Civil War partly about the division of state and federal power. After the Union victory, We the People passed three amendments that shifted vast new authority to the federal government.

5) In the Progressive era, we passed two more amendments that strengthened the federal government. The 16th provided vast new economic resource to the federal government via the national income tax, and the 17th removed the power to appoint Senators from state legislative authority, thereby strengthening the direct ties between the federal government and the citizens.

6) Government inaction was blamed for the brutal economic downturn of the 1930’s. In response, the Court during the Roosevelt years—relying at least in part on the textual and historical basis outlined above—empowered and blessed the government action widely credited for turning the country around.

This argument honors a federal government empowered by the Constitution to both “secure the blessings of liberty,” and “promote the general welfare,” as designed in the Preamble. The Dirty Dozen ignores two hundred years of textual and historical evidence that demonstrates these objectives, far from being mutually exclusive, can go hand-in-hand.