What the Constitution Is and Isn’t

Thomas DiLorenzo continues to have problems recognizing what the Constitution is: a grant of power to the federal government. He writes:

The article on FCC tyranny by Marc Stevens, cited below on the Blog by Charley Hardman, is excellent but contains one flaw: The Constitution is not entirely a “negative charter of liberties.” Until 1865 it was: It prohibited Congress from doing a great many mischievous things and delegated only a precious few powers to the central government, reserving sovereignty in the free and independent states.

The Constitution was never a negative charter of liberties. If that were so, there would be no reason to create a Constitution in the first place. If Congress hadn’t been constructed and endowed with power, there would be no reason to limit Congress’ power. It wouldn’t have any.

In fact, the Constitution gives Congress substantial power: levy indirect taxes, borrow money, regulate interstate commerce, establish laws for naturalization and bankruptcy, coin money, establish post offices, build roads, establish patents and trademarks, create courts, declare war, publish letters of marquee and reprisal, raise and support armies and navies, and govern the federal district. More so, they can make any law necessary and proper to carry out these powers. That is not an inconsequential grant of power, and it’s hardly a negative charter of rights.

However, the “Civil War Amendments” — 13, 14, and 15 — all contain a clause at the end that empowers Congress to enforce them. This created opportunities for endless power grabs by the central government, which it has taken full advantage of, especially with regard to the 14th Amendment. The mindless egalitarianism that now rules our society is a direct result of this. Thanks to these Amendments we’ve gone from “Congress shall make no law . . .” to “Congress can do whatever it damn well pleases, and if it doesn’t, federal judges can simply declare themselves dictators and legislate from the bench.”

Actually, Congress bases most of its legislative authority on the Interstate Commerce Clause. The legal theory is, since nearly everything affects interstate commerce, it stands to reason that Congress has authority over most everything. In recent years this has been scaled back somewhat, especially though Lopez, but the primary justification has changed little. Indeed, since nearly everything does touch or affect interstate commerce, and since Congress is empowered to make all laws necessary and proper to regulate interstate commerce, it stands to reason that Congress has considerable authority. And that authority has expanded because there is much more interstate commerce than there was in 1789.

Whether the Constitution has any proper authority, well, that’s another question.

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