Supreme Court appointments in the next term have the potential to begin the end of the welfare state with its federal aids for business, housing, education, medical insurance, and many other functions not sanctioned in the U.S. Constitution. The court announced its intention in U.S. v. Lopez in 1995: “We start with first principles. The Constitution creates a Federal Government of enumerated powers.” See Art. 1, Section 8. As James Madison wrote: “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. . . . This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties . . . ” In the U.S. v. Morrison decision in 2000 the court built on Lopez when it again recognized that the federal government is restricted from legislating in areas the Constitution left to the states or the people.
Judicial movement toward constitutional government was in play in November’s election. President Bush has suggested that he will appoint justices who apply strict constitutional scrutiny. If he does, and if the court acts, the people will gain in liberty and the economy will approach its potential in jobs and wealth.
Congress has power to make laws only for the purposes enumerated: lay and collect taxes, defense, borrow money, coin money, regulate commerce, establish post offices and post roads, govern the District of Columbia, institute and regulate the armed forces, and a very few others. It also funds administration of the three branches of government. The court has restated that it will follow the Constitution, which means that it would strike down taxation and spending that does not conform. In so doing it would gradually overturn its flawed 1936 decision in U.S. v. Butler, which allowed Congress to ignore the enumerated powers if it had a reason to pass a law, and it can always find one.
The U.S. Supreme Court will not simply sweep federal programs away. It tends to select cases carefully and rule narrowly, so it might perhaps rule out a business subsidy here, family leave act or minimum wage there, an export guarantee, federal funding for education, government-financed medical insurance, and it would likely limit taxation.
Regulation, like taxation and spending, is also apt to get strict scrutiny by constitutionally oriented justices. A very significant announcement of principle by the court in 1994 had to do with property rights (protection of which was the reason for creating government, according to John Locke and the Founders). For the first 150 years the court upheld strictly the people’s economic rights, but in 1926 in Village of Euclid v. Ambler Realty, the first zoning case, and in later cases, the court downgraded citizens’ Fifth Amendment rights in their property, suggesting that economic rights were inferior to others.
But in 1994 the court in Dolan v. City of Tigard proclaimed: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances . . . One of the principal purposes of the Takings Clause is ‘to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole’,” i.e., government may not confiscate one person’s property and give it to others, a practice approved by some lower courts in recent years.