“Great engines crawled across the field; and in the midst was a huge ram, great as a forest-tree a hundred feet in length, swinging on mighty chains. Long had it been forging in the dark smithies of Mordor, and its hideous head, founded of black steel, was shaped in the likeness of a ravening wolf; on it spells of ruin lay. Grond they named it, in memory of the Hammer of the Underworld of old. Great beasts drew it, orcs surrounded it, and behind walked mountain-trolls to wield it… Thrice the great ram boomed. And suddenly upon the last stroke, the Gate of Gondor broke.” - J.R.R. Tolkien, The Return of the King
Freedom is always under siege from the roving bandits that seek to tyrannize and plunder the free. To protect themselves, the Founding Fathers of the United States erected the Constitution as a citadel of freedom. Like Minas Tirith, it was built with seven walls. From outer to inner, the walls are:
A written constitution.
A vertical separation of powers.
A horizontal separation of powers.
A government of enumerated powers.
A government of mixed type.
A bill of enumerated rights.
An acknowledgment of unwritten rights.
All seven walls have been breached. Last week we documented the collapse of the first three walls. This week we’ll discuss the state of the fourth wall.
A Government of Enumerated Powers
The Wall: The concept of "enumerated powers" refers to the specific powers that the Constitution grants to the federal government. These powers are listed in Article I, Section 8 of the Constitution and include the power to regulate commerce, coin money, raise an army and navy, and establish post offices, among others. The federal government was intended to be limited to only exercising these powers, leaving the states to have the authority to govern in all other areas not specifically delegated to the federal government.
This division of powers, known as federalism, was fundamental to the Framers. The concept of enumerated powers was discussed in several of the Federalist Papers. In Federalist No. 41, “General View of the Powers Conferred by The Constitution,” James Madison wrote:
Is the aggregate power of the general government greater than ought to have been vested in it?… That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects:
Security against foreign danger;
Regulation of the intercourse with foreign nations;
Maintenance of harmony and proper intercourse among the States;
Certain miscellaneous objects of general utility;
Restraint of the States from certain injurious acts;
Provisions for giving due efficacy to all these powers.
In Federalist No. 45, “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison elaborated on the topic, writing:
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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.
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, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.
As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
Finally, in Federalist No. 33, Alexander Hamilton wrote:
Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who… have labored to envelop [the Constitution] in a cloud calculated to obscure the plainest and simplest truths.
[T]he danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union…
It is clear from these papers that the citizens the Federalist Papers were addressing wanted the federal government to be almost exclusively concerned with foreign affairs, with the states left with everything else. Hamilton, at least, thought that the federal government was so constrained that it might even be too weak to sustain the Union.
Why was the issue of enumerated powers so important to the Framers? Because there were several states, and Americans could move between them. But there was only one federal government. Should one state become insufferable in its regulations or taxation, its citizens could depart for another state — much as unhappy Californians today are fleeing to Florida and Texas. But should the federal government become insufferably tyrannical, its tyranny would extend across the entire nation, and nothing could be done short of revolution. Better, then, to make the federal government only as strong as it needed to be to handle foreign affairs.
With the benefit of hindsight, we now know that everything Madison and Hamilton predicted would never happen all swiftly came to pass. Almost as soon as the Constitution was passed, the federal government began to interfere with the prerogatives of the states, and it continued to do so. Given their later political positions (Federalist vs. Democrat-Republican), it is hard to escape the suspicion that Hamilton was subversive and Madison was naïve when each wrote their Papers.
The Breaches: The fourth wall has been repeatedly breached through overzealous application of the Necessary and Proper Clause and the Commerce Clauses, the same clauses that breached both the second and third walls. Indeed, if America is Minas Tirith, then the Necessary and Proper Clause is Grond, the battering ram forged in the fires of Mordor to breach the city’s gates, and the Commerce Clause is the mountain-trolls that wield it.
For those of you who missed (or already forgot) the last essay, the Necessary and Proper Clause is a provision in the United States Constitution that gives Congress the authority to pass laws that are "necessary and proper" for carrying out its enumerated powers. This clause has been used throughout American history to justify the expansion of federal power and the erosion of the limits of enumerated powers.
The first breach by Grond came in the case of McCulloch v. Maryland (1819). There, the Supreme Court upheld the constitutionality of the Second Bank of the United States, because it was necessary and proper for carrying out its enumerated power to regulate commerce. This decision established the principle that Congress has broad authority to use the Necessary and Proper Clause to pass laws under the Commerce Clause.
The second breach by Grond came in the case of Gibbons v. Ogden (1824). The New York State Legislature had granted to Robert R. Livingston and Robert Fulton the exclusive privilege to navigate New York’s territorial waters with steamboats. This monopoly resulted in a lawsuit that reached the US Supreme Court. The Court ruled that the power of the federal government to regulate commerce between the states under the Commerce Clause of the Constitution included the exclusive power to regulate navigation of the waterways within the states.
Gibbons was a very broad ruling, and paved the way justify the expansion of federal power in areas such as the economy, education, and healthcare. The New Deal programs of the 1930s, justified by the economic crisis of the Great Depression, were justified under the Necessary and Proper Clause, and each program represented another breach.
For instance, the National Recovery Administration asserted the ability to regulate prices and wages in various industries nationwide. The Agricultural Adjustment Administration claimed the power to stabilize agricultural prices by reducing crop production. Imagine — if you can — the reaction of Virginia or North Carolina in 1800 to a federal law restricting cotton production. It would have been seen as an unfathomable overreach, a national tyranny.
A brief respite in the assaults on the fourth wall came during the Rehnquist Court era, with cases like U.S. vs. Lopez firmly rejecting federal overreach. The respite ended quickly when Gonzales vs. Raich forced conservatives to decide if the War on Drugs took precedence over their long-standing commitment to federalism. Conservatives decided that it was important to imprison California hippies for growing marijuana. Grond is wielded by both Left and Right, when convenient to the current cause.
Despite these assaults, the fourth wall continued to offer some defense against government tyranny through 2012. In that year, the case National Federation of Independent Business v. Sebelius came before the Supreme Court. In NFIB, the Supreme Court reviewed the constitutionality of the Affordable Care Act (ACA), better known as Obamacare. The ACA placed a so-called “individual mandate” on every American to purchase health insurance.
The stakes were high. If the ACA could be upheld as necessary and proper to regulating commerce, then the federal government had no real limit to its power. The importance of this case did not escape the attention of the political and academic community. According to Professor Glenn Reynolds and Brandon Denning, NFIB was “one of the most eagerly awaited [case] of the twenty first century.” And the pundits and jurists “were sure that the Court would do its duty and uphold the obviously constitutional Act.” Yale professor Akhil Amar went so far as to declared that “his entire teaching career will have been a fraud were the Court to invalidate the mandate.”
As it happened, the outcome surprised everyone. Reynolds and Denning explain:
On the question virtually everyone expected to be determinative—the constitutionality of the Act under the Commerce Clause—Roberts ruled that the mandate to purchase health insurance fell outside of Congress’ commerce power.
What exactly did Chief Justice Roberts say?
Each of our prior cases upholding laws under the [Commerce] Clause involved exercises of authority derivative of, and in service to, a granted power. . . . The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power… [S]uch a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.
Strong language. Was Grond pushed back? Did the fourth wall still stand then? Was America free from a federal government of unlimited power? Well… maybe.
After rejecting the constitutionality of the Affordable Care Act under the Commerce Clause, Roberts immediately went on to uphold the constitutionality of the ACA as as an exercise of Congress’ power to tax. Reynolds and Denning wryly call this an “odd note.” Opinions differ sharply as to what, exactly, this decision means. Was it a conservative cutback of Commerce Clause overreach, disguised as a left-wing victory? or was it another conservative capitulation to the extension of government power, now through taxation? Not even my old law professors agree, and they usually agree that I’m wrong about everything .
Given Chief Justice Robert’s jurisprudence in the decade since NFIB, my suspicion is that the steady and inexorable battering of Grond will continue. The fourth wall still stands, but another breach has been opened.
Next week we’ll talk about the fifth wall, the government of mixed type. For now, let’s contemplate this on the Tree of Woe.
Contemplations on the Tree of Woe is the leading Conan-themed blog about law, politics, economics, and philosophy. To receive new posts and support my work, please consider becoming a free or paid subscriber but only after you’ve re-watched all of James Earl Jones’ scenes in Conan the Barbarian.
This implies, of course, that Alexander Hamilton was Sauron. Presumably at the time of the drafting of the Constitution and the Federalist Papers, Sauron had taken the guise of Annatar, the giver of gifts, whose teachings were widely adopted by the elves of Virginia.
I apologize profusely for interjecting so much Lord of the Rings memology into my Conan-themed blog. Sadly, Robert E. Howard never wrote about the siege of a seven-walled city. I’m sure if he did it would have ended with screaming Pictish savages massacring the inhabitants, who had grown weak on the soft silks of civilization. Or something.
When do you guys all "Flee! Flee for your lives!" ?
Clearly this legal stuff is a total basket-case and lost cause; almost deterministically so.
Also, speaking of total basket-cases:
....you might end up vindicated far earlier on in the year than expected!
An underlying historical force moves governments to ever greater centralization. The trend is such that we will look wistfully back to the New Deal era as a model of self-government.
That force is transportation.
The very idea that most governance could be done at the state level relied in part in the high cost of changing states. With ease of transport people can arbitrage away the costs and benefits of government services. Work in a low tax state while young and healthy. Get sick or have a handicapped child? Move to the state with generous welfare benefits Authority and responsibility get separated.
Once government gets into the business of social services, you get this disconnect unless you centralize to the point where this arbitrage becomes difficulty.
Without physical and economic walls, the responsibility for welfare provision will move from Washington to a world authority. We will lose sovereignty. Paper will not stop this. Only recognition of this dynamic and the will to stop it.