JUDGES WHO DON'T JUDGE BRING ABOUT BIG GOVERNMENT

April 25, 2011

The astonishing size and scope of our federal government is no longer news to anyone who has been paying attention to the ongoing budget battles in Washington, D.C. But what may be surprising is that not all of the blame for our bloated, controlling federal government lies with Congress. The U.S. Supreme Court shoulders much of the blame as well.

Take, for example, federal entitlement programs like Social Security, Medicare and Medicaid. Nowhere does the Constitution authorize Congress to tax some citizens to pay for the savings or health care of others. As James Madison said in 1794, the Constitution does not “grant a right to Congress of expending, on objects of benevolence, the money of their constituents.”

Nonetheless, in 1937, in a case called Helvering v. Davis, the Supreme Court concluded that the constitution allowed Congress to do just that. George Davis, the plaintiff, was a shareholder of Edison Electric Corporation. He wanted to stop the company from making the payments and payroll deductions that the Social Security Act required, so he sued. Echoing Madison’s point, he argued that the Constitution does not allow Congress to transfer wealth from one citizen to another and the Tenth Amendment—which says that the powers not delegated to Congress remain with the people and the states—prevents it.

The Supreme Court disagreed. It found the power to require citizens to fund Social Security in the so-called “general welfare” clause of Article I, section 8. That section gives Congress the power to collect taxes and other forms of revenue “to pay the Debts and provide for the common Defence and general Welfare of the United States.” Until the 1930s, this clause was widely viewed as a limitation on Congress’s power to tax and spend. That is, by limiting spending to the common defense and general welfare, the Framers were making clear that Congress could raise and spend money only to discharge its other enumerated powers.

Those powers include raising and supporting the armed forces, establishing the Post Office, passing immigration and bankruptcy laws, and regulating interstate and foreign commerce. They don’t extend to just anything Congress thinks is worthy of federal largesse. As James Madison argued, interpreting the general welfare clause as an independent power to tax and spend would turn the Constitution’s doctrine of enumerated powers on its head.

But that is exactly what the Supreme Court did in Helvering. It concluded that Congress could tax citizens and spend their money on anything Congress thinks might serve the “general welfare,” even going as far as saying that Congress gets to decide what “general welfare” means. Seventy-odd years later, we can see the results, as Congress spends our money like a bunch of drunken sailors. Entitlements alone amount to more than $1.5 trillion per year, which is half the federal budget and more than the entire GDP of most countries.

But profligate spending is not the only way in which the federal government affects our lives. It also interferes with the choices we make in virtually every area of our lives. For that, you can also thank the Supreme Court, which in a 1942 case called Wickard v. Filburn, concluded that Congress can regulate virtually everything Americans do.

Filburn was a farmer in Ohio who produced more wheat than the Depression-era Agricultural Adjustment Act allowed. He challenged the law in court, arguing that it exceeded Congress’s power to “regulate commerce . . . among the several states.” That power, as Filburn saw it, would only allow the federal government to regulate his sales to people in other states. But he consumed most of his wheat himself and sold only a small amount within his own state, so he argued that Congress had no business telling him how much wheat he could produce.

Filburn was in good company. The Framers gave Congress the commerce power largely to prevent states from erecting trade barriers. That’s why the provision is generally known as the interstate commerce clause—because it allows Congress to regulate only interstate commerce, not all commerce.

Unfortunately, as in Helvering, the Supreme Court decided that if a little Congressional power was good, a lot was better. In the Court’s view, it didn’t really matter if a particular activity was actually “commerce,” as opposed to consumption or production, and it wasn’t terribly important if that activity was done over state lines, as long as it might affect interstate commerce. Congress needs to solve economic problems, as the Court saw it, and the courts should not get in the way.

The result, today, is a massive federal regulatory state that imposes staggering costs on us, limits our choices, wastes billions every year, and has helped to drive our economy into the ground.

The Framers gave us a constitution that prevents Congress from regulating and spending on anywhere near the level that it does today. If we want the document to do its job, we are going to have to recognize that our Constitution is only so much ink on parchment without a U.S. Supreme Court that is willing to enforce it.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.