Vacationing with the boys for Memorial Day, I did not squeeze in time for writing a fresh DJ. I promise to make up for it on Wednesday, when I take on the new Coalition of the Billing. In the meantime, an appropriate flashback to a piece I wrote back in 2004 for The Constitutionalist, the newsletter of the Constitutional Rights and Responsibilities Section of the North Carolina State Bar Association).
RALEIGH – Lately I’ve been reflecting on North Carolina’s celebrated history as, well, the political equivalent of a cantankerous old coot.
You know the fellow I mean. Perhaps despite himself, he won’t keep his mouth shut. He won’t go to a reception and just relax and enjoy the festivities, passing the time with treats and trivialities. No, he has to complain about something or debate the latest political controversy. He’s the uncle at your birthday party who won’t just fork over a card stuffed with cash but who deigns to demand what you’ve been doing lately and what your grades looked like last semester. He’s the guy who actually shows up at your corporation’s shareholders meeting and starts asking uncomfortable questions. He’s the guy who shows up at weddings to which he wasn’t invited and fails to show up when he has been.
What brings this to mind is my recent re-reading of the history of the American founding and North Carolina’s unique role in it. Separate groups of patriots in North Carolina declared independence from Britain in 1775 and 1776, the first in the nation to do so. In another apparent national first, a North Carolina state court in 1786 struck down a law legally enacted by the state legislature because it violated a provision of the state’s constitution, thus creating a precedent for the later assertion of the principle of judicial review. Unlike Virginia, South Carolina, Pennsylvania, and New York, North Carolina didn’t send a gaggle of great and famous orators to the Constitutional Convention that torrid summer in 1787. Our delegation of able men seems to have spent much of the time reading, scheming, and muttering. During the ratification debates, North Carolina was the only state that convened a convention and then refused to ratify the new constitution because it lacked a Bill of Rights and bestowed excessive and ambiguous power to the new federal government. Later, North Carolina was initially hesitant to leave the federal union over the issues of states rights and slavery, and decided to do so only after President Lincoln helped to precipitate a military conflict with the emerging Confederacy and then demanded troops from the border and peripheral South to invade it.
I’m not going to portray each of these actions as justified or heroic. They were, however, evidence of a sort of Carolinian political psychology that I contend has held sway for much of our history. Even in recent years, we’ve been a state who would send irascible characters like “Senator Sam” Irvin and Jesse “Senator No” Helms to Washington and flout regional or national custom when it suited us.
Now, with our country facing a host of new challenges and political controversies, I for one would like to see North Carolina play its unique, cantankerous role in the national debate again – by insisting on a rejuvenation of the republican ideals enshrined in the United States Constitution. There has never been a time when this need was greater. As our state constitution puts it, “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”
By this, I don’t mean to suggest that any one issue of constitutional import – be it abortion rights, the internment of terrorists, gun control, free speech, campaign reform, or property rights – be the focus of North Carolina’s forceful intervention. There are various opinions on these subjects, some less informed than others in my view but mostly heartfelt and seriously argued, among the diverse citizenry of our state. Instead, what I mean is that in general the federal government has lost its proper moorings to its founding document, and that the Framers of the Constitution would be horrified at much of what is even being debated in Washington, D.C. these days (quite apart from which side in the debate they might, upon reflection, endorse).
Consider the controversy that led North Carolina to stay out of the federal union for the first presidential election in 1788: the lack of a Bill of Rights and the existence of ambiguous grants of power to the federal government. One of the arguments against North Carolina’s position, and that of the Anti-Federalist movement as a whole, was that listing a set of inviolable individual rights in the constitution would be dangerous. James Madison, Alexander Hamilton, and other Federalists said that including a Bill of Rights would imply that any power not specifically prohibited by it could be exercised by the new federal Congress, president, or judiciary. This would, they continued, eviscerate the concept of enumerated powers contained in Article 1, Section 8 (for Congress), Article 2, Sections 2 and 3 (for the president), and Article 3, Section 2 (for the Supreme Court).
Some historians argue that these objections were, at least in Hamilton’s case, not intended to be taken seriously. Furthermore, since the document already specified certain individual rights and prohibited certain federal powers – such as passing bills of attainder or ex post facto laws – this risk was already embedded in the un-amended constitution. Still, the fear was widespread enough to motivate Madison and other Federalists to suggest a compromise: that the Bill of Rights specifically contain language to prevent future elected or appointed federal officials from asserting a constitutional power to do something merely because no constitutional provision prohibited it.
This idea was contained in the 9th Amendment, and also to some extent in the 10th Amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” reads the pithy and usually overlooked 9th. And “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the state respectively, or to the people,” adds the much-maligned 10th.
North Carolina signified its approval of the Bill of Rights, including this essential language restricting federal power, by entering the union in 1789 (actually, the state convention, held in Fayetteville, somewhat predated the formal approval of the constitutional amendments but the national push to do so clearly affected the North Carolina proceedings, as noted state historian William S. Powell has observed). Unfortunately, the warnings of the Federalists, whatever their motivation at the time, have proved to be prescient. Over the decades, Congress, presidents, and judges did come to believe that any power not blocked by a specific constitutional provision was de facto granted to the federal government. That’s one reason why we have so many knockdown, drag-out fights over such issues as gun control. Both proponents and opponents of federal restrictions on the purchasing or owning of firearms point to and debate the precise wording of the 2nd Amendment (the original intent of which, I think is now evident, supports the gun-rights case). In actuality, though, it shouldn’t matter whether the 2nd Amendment forbids Congress from regulating guns. There is no rational interpretation of the enumerated powers in Article 1, Section 8 that extends Congress any such regulatory authority in the first place.
What about the “general welfare” clause? It provides a justification of the power to lay and collect taxes, not a general grant of regulatory power to Congress. What about the “necessary and proper” clause, which has gotten so elastic over the years? Well, it’s well past time for it to snap back into shape. Congress is authorized to pass legislation to carry out its preceding enumerated powers, not to accomplish any purpose under the sun. Otherwise, it doesn’t make sense for federal powers to have been enumerated in the first place. And what about the need for a “living constitution”? Sure, things change. That’s why the constitution provides for the process of amendment, a process Americans have used when the occasion demanded it (and occasionally, during the Progressive/Prohibitionist Era, when it didn’t – sorry for the gratuitous editorial comment).
There is scant constitutional justification for big swaths of the current federal government. You may think this to be an archaic and ideological point, but I beg to differ. For example, to say that Congress has no legitimate power to legislate in areas such as education, health care, or retirement security is not necessarily to suggest the libertarian conclusion that no government has that legitimate power. In North Carolina, for instance, state government clearly has not only a constitutional right but also a constitutional duty to levy taxes to finance the provision of an opportunity for a sound, basic education to every child in the state. Similarly, I am unaware of any constitutional barrier to North Carolina or other states running safety-net programs, or psychiatric hospitals, or universities, or road systems, or parks, or offices ensuring that private individuals or interests do not impinge on the legitimate health and safety of North Carolinians. These policies can and should be debated on the merits, within elective branches of government, but they do not contravene the state constitution as far as I know.
There remain good reasons for America to rediscover this basic notion of a constitutional, federal government. For one thing, if portions of the U.S. Constitution are meaningless – if the enumerated-powers doctrine and the 9th and 10th amendments are just accidental inkblots – then it isn’t much of a stretch to question whether the rest of the document isn’t, or won’t at some point become, equally meaningless. If you care about the continued federal protection of free speech or freedom of religion, then, it might be worth your while to give at least a whit about whether the federal government is legislating beyond its constitutional purview in areas of domestic or social public policy.
Second, a truly federal form of government gives states, communities, and individuals room to breathe. It promotes diversity and competition. Just as an example, I’m a strong advocate of transforming our current Social Security system into one where workers own and control their own retirement savings rather than having federal bureaucrats make such critical decisions for them. I happen to think that this mandatory-but-largely-private system would be far more generous to workers, particularly at the lower end of the economic scale who have few other opportunities to save, and foster far more liberty and personal responsibility than does the current system, which is actuarially bankrupt anyway. If Congress recognized no power to compel workers’ compliance with a federal pension scheme, states can and would have the latitude to offer a variety of different arrangements for funding and controlling private retirement accounts.
Perhaps my views on this are horribly wrongheaded. Perhaps they are ingenious. In a truly federal system of enumerated and circumscribed powers, Americans would figure out these issues over time by comparing their lot with that of their peers in other states. The same holds true in such controversial policy debates as regulatory policy, parental choice in education, abortion rights, Smart Growth and mass-transit policies, same-sex partnerships and marriages, and many more.
What I guess I’m saying is that if we really took the U.S. Constitution seriously – rather than simply searching its text for useful pegs upon which to hang our respective political baggage – Americans would insist that their representatives in Washington spend a lot more of their time tending to their proper constitutional duties. Happily, this message would most often approximate something like, “just sit down and shut up!” – the utterance of which would serve as a great catharsis and tension-reducer for many of us.
North Carolinians – Democrats and Republicans, conservatives and liberals, regardless of race and creed and Sunday-morning itinerary – should take the lead in this important cause. We are (or used to be) “First in Freedom” for a very good reason. We used to be the cantankerous old coot at the constitutional garden party. It’s time we became him once more.
Hood is president of the John Locke Foundation.