Civil and Human Rights

Whatever Happened to Truth in Advertising? The Continued False Campaign Against the Constitution by the Tea Party and Its Allies

On page A4 of today’s Washington Post (and in several other “inside the Beltway” publications), an ad placed by the Cato Institute—a libertarian think tank that, according to its website, is inspired by Cato’s Letters, “a series of essays published in 18th-century England that presented a vision of society free from excessive government power”—launched the latest volley in conservatives’ attack on the Constitution.  Cato’s ad today certainly presents a vision of limited government.  But while that vision purports to be grounded in the Constitution, it most certainly is not.

Undeterred by the actual text and history of our Constitution, Cato joins an impressive array of forces that have been doing everything they can to convince Americans that our Constitution somehow establishes a weak central government incapable of acting to address national issues like health care reform, environmental protection, and financial system reform.  In this effort, Cato joins the Tea Party, other think tanks such as the Heritage Foundation, and even the conservative district court judge in Florida who last week declared the Affordable Care Act unconstitutional in a twisting of constitutional law so egregious that prominent constitutional scholar Akhil Reed Amar observed that his first-year law students understood the Constitution better than the judge does.  This is nothing less than a concerted campaign to plant in Americans’ heads the idea that the federal government has transgressed the bounds of our Nation’s charter and dangerously overreached.

The problem is that the Tea Party and their allies are seeking a return to a different founding document than our actual U.S. Constitution—what they really want is a return to the failed Articles of Confederation.  As my colleague David Gans and I explained in Constitutional Accountability Center’s Issue Brief entitled Setting the Record Straight: the Tea Party and the Constitutional Powers of the Federal Government, the Articles of Confederation established the weak central government apparently so beloved by Cato and the Tea Party.  But the Articles’ experiment in weak central government was a complete failure, which is why it was jettisoned, as the Founders came together to craft a “more perfect union” that expressly vested the federal government with enumerated but significant powers to act in the Nation’s interest.  Cato’s ad  today pretends that the Articles were never discarded, and that the idea of a hobbled, weak central government is not a historical loser.

Cato’s ad deals with three particular clauses of the Constitution, all contained in Article I, Section 8: the clause that gives Congress the power to tax and spend to “provide for the common Defence and general Welfare of the United States;” the clause that gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and the clause that gives Congress the crucial power to “make all Laws which shall be necessary and proper” for carrying out all constitutional powers granted to the federal government.

The ad claims that the congressional power to tax and spend for the general welfare has been misinterpreted in an overly broad manner, focusing on a straw-man argument—that some contend  Congress can do whatever it wants if it is in the interest of the “general welfare.”  But it is not the contention that Congress has carte blanche under this clause.  It is, however, undeniably true that, as Prof. Amar notes, a “basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment [the 16th Amendment].”  Tea Partiers—and Florida’s Judge Vinson, who gave them a tip of the hat in his ruling last week striking down health care reform—like to pretend that the anti-tax activists of today are carrying on the legacy of the Boston Tea Party.  They’re not: the rallying cry of the Boston Tea Party was “no taxation without representation,” not “no taxation, period.”  Our Constitution gives Congress broad power to tax and spend in the Nation’s interests, but it also gives the people the representation for which they fought a revolution.  If today’s Tea Partiers don’t like the federal government’s choice of taxes, they are free to vote for new representatives.  But no one should confuse policy preferences with constitutional limitations.

Second, Cato’s ad takes on the Commerce Clause, which the ad claims was intended to create a national “free-trade zone.”  Given that the ad is about the words of the Constitution, the ad’s placement of the phrase “free-trade zone” in quotes might lead a reader who hasn’t perused the text of the Constitution lately to think those words are actually in the Constitution.  But they’re not.  In fact, the notion that the Constitution’s reference to commerce is limited to trade is a favorite of advocates of “limited government,” and one used by the two conservative district court judges who have found the individual responsibility provision of the Affordable Care Act unconstitutional.  As CAC explained in written testimony submitted last week to the Senate Judiciary Committee, while it is certainly true that the Commerce Clause power relates to economic interactions and trade, “[the word] ‘commerce’ also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.”

Finally, the Cato ad includes the Constitution’s “necessary and proper” clause as one of the allegedly “misunderstood” clauses that has led to “intrusive government.”  Its description of the clause suggests that it limits Congress to strict, narrow enumerated powers.  But in the 1819 case of McCulloch v. Maryland, the great Chief Justice John Marshall rebuffed states’ rights attorneys who claimed that Congress lacked authority to create a federal bank, finding instead that the Constitution gives Congress implied as well as express powers.  Our early Supreme Court held that even though the Constitution does not expressly speak of the power to create a federal bank, Congress nevertheless could establish a federal bank to facilitate national security and interstate commerce.  Moreover, from Chief Justice John Marshall to Chief Justice John Roberts (joining in last Term’s United States v. Comstock), the Supreme Court has consistently held that Congress should be shown significant deference regarding what laws it considers to be appropriate in carrying out its constitutional duties.

Cato, the Tea Party, opponents of health care reform, and many other conservatives like to portray the Constitution as a document that is all about limiting government, as examined in CAC’s blog series, Strange Brew: the Constitution According to the Tea Party.  However, the text and history of the Constitution show that, after the abject failure of the Articles of Confederation, the Founders were specifically concerned with creating an empowered, effective national government.

To be sure, the powers of the federal government under our Constitution are not unlimited—the Constitution establishes a central government of enumerated powers, and our 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, in the more than two centuries since the Founding, the American people have amended the Constitution numerous times to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans.  Cato has often been a fierce defender of personal liberty, and CAC has been on the same side as Cato on issues of fundamental rights protected by the Constitution’s amendments in the past (and we hope we will be again).  Unfortunately, those amendments and their vision of a national government powerful enough to protect liberty and promote the national interest are nowhere mentioned in Cato’s ad.  Truth in advertising?

An attack on the Constitution that comes in the guise of respecting the Constitution, like Cato’s ad today, is particularly clever.  But it is still wrong.

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