RALEIGH – In response to my previous column gently chiding supporters of the porkulus bill for their gargantuan screw-up, many readers have challenged my quick reference to the bill’s subversion of our state and federal constitutions. How can such a charge be justified, they ask, since the bill was approved by majorities of both houses of Congress and signed by the president?
Please allow me to revise and extend my remarks.
Constitutions are more than just rules for legislative deliberations. Constitutions recognize fundamental rights that can’t be infringed by simple legislative majorities. Constitutions limit the powers that simple legislative majorities have permission to exercise, and forbid such majorities from conferring new powers on themselves without going to the people via constitutional amendment. And constitutions specify how government officials can exercise their specified powers, and to what ends.
I didn’t say that the porkulus bill would be struck down by the U.S. Supreme Court. I said that it subverts key provisions of both the state and federal constitutions. The word means literally “to turn over.” The bill turns constitutional principle on its head in two destructive ways. In my initial column, I provided links to the relevant arguments, but I’ll restate them more clearly now.
North Carolina’s state constitution requires that the state have a balanced budget. Because the constitution also clearly provides for the state to take on public debts, this means that the state can sell bonds to pay for capital projects but it can’t simply emulate the federal government and sell bonds to finance the ongoing operations of state government.
But several parts of the porkulus bill are specifically designed to finance the ongoing operations of our state government by selling bonds – only, these will be federal bonds, not state ones. The constitutional principle is the same, that it is imprudent to allow elected lawmakers to issue debt to balance North Carolina’s operating budget, particularly without subjecting the debt issuance to a public vote. Because Washington is acting as North Carolina’s agent in this regard, however, it would be difficult to challenge the action as a violation of the state constitution.
Still, it subverts North Carolina’s balanced-budget requirement, and that of most other states.
The federal constitutional problem is a familiar one: the enumerated powers doctrine. In Article I, Section 8, the U.S. Constitution specifies the powers delegated to Congress by the people of the United States. The key phrase is in the first paragraph, which allows Congress to “pay the debts and provide for the common defense and general welfare of the United States.” During the early 20th century, the Progressives successfully pushed the Court and others to redefine the “general welfare” to mean “whatever public officials want to do.” They delimited the limit, in other words.
But that’s not at all what the Framers of the Constitution meant by the phrase “general welfare.” They were distinguishing between governmental actions that benefited the country as a whole – say, defending its borders from invasion or coordinating functions that cross numerous state boundaries – and governmental action that benefited the welfare of particular individuals at the expense of the taxpayers.
Throughout much of the country’s early history, its presidents and justices demonstrated that they understood exactly what the phrase meant by vetoing or striking down congressional legislation that aided particular individuals, firms, or communities. As President Chester A. Arthur wrote in an 1882 veto message:
My principal objection to the bill is that it contains appropriations for purposes not for the common defense or general welfare, and which do not promote commerce among the states. These provisions, on the contrary, are entirely for the benefit of the particular localities in which it is proposed to make the improvements. I regard such appropriation of the public money as beyond the powers given by the Constitution to Congress and the President.
The very same objection applies to many provision of the so-called stimulus bill just signed by President Obama. Disappointing but unsurprising.
Hood is president of the John Locke Foundation