The Library of Congress is fascinating – kind of a miniature portrait of U.S. history. It has existed for almost as long as Congress itself, has suffered in war and felt the pinch of recession, serves as a repository of many of our national treasures, and in its very design and decoration reflects our both the universality of our ideals and the limited range of our vision. It should also, by certain “strict constructions” of the Constitution, not exist.
The Library was created by an act of Congress in 1800 to be, essentially, a legal reference library for members of the legislature. But the dirty British burned it down in the War of 1812; Thomas Jefferson, in retirement at Monticello and somewhat strapped for cash, offered to sell Congress his 7,000-volume collection as a replacement. This sparked something of a debate in the chambers of the legislature — why, many asked, should the Congress purchase books on architecture and astronomy and theology for what was supposed to be a law library? But Jefferson, a good salesman, answered that he could not think of any subject that was not relevant to lawmaking. His argument carried the day, and his eclectic tastes molded the character of the new library.
That was in 1815, and for 50 years the Library labored under a number of difficulties: it faced competition from the Smithsonian Institution, which was jockeying to become the national library; it was underfunded; an 1851 fire destroyed two thirds of the collection, including most of Jefferson’s original endowment; and during the Civil War it became, needless to say, a less than urgent priority for the federal government.
But after the war, Congress chose as its Librarian the splendidly-named Ainsworth Rand Spofford, an able manager and apt politician who radically revised the role of the Library, asked for and received funding for vast new facilities, assumed control of the Copyright Office, and generally exploded the LOC into a massive federal spending program. (Well, you know — massive for a library. Still tiny by the standards of, say, the War Department.)
The part about the Copyright Office is especially worth noting, because Spofford got it by promising to administer copyrights for “free” — i.e., with no additional appropriations — in exchange for being allowed to take keep two copies of every text registered for copyright. This had the effect of massively expanding the Library’s collection, of course, which right away ought to have clued Congress in to the fact that this was going to cost them more money. But the promise of “free” administration allowed them to pretend they were getting something for nothing, and it allowed the LOC to grow into something larger and more useful — our national library.
Unfortunately, there is no provision in the Constitution that allows for the creation of a national library. And recently some, er, Tenth Amendment enthusiasts have been making the claim that said amendment prohibits Congress from doing anything not specifically mentioned in the Constitution — especially anything as dangerous to the Republic as regulating health care.
And, in fact, they may be right. Here is the text of that Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
A literal reading of that text is kind of a bummer for all those liberals who spend their nights dreaming of eco-sustainable flying cars powered by the sheer authority of the federal government. Apparently that source of energy is smaller than we had at first thought.
Here’s a section of the Constitution detailing Congress’s powers, laid out by our infallible Founders in convenient bullet-point format. I won’t quote the whole thing here, but go ahead — click the link and have a read.
Seriously, come on. It’s one short section in the world’s shortest written constitution. I’ll wait.
[whistles jaunty tune]
Now, you might be thinking that such phrases as “provide for the… general welfare” and “all Laws which shall be necessary and proper” allow the federal government to just go around imposing its will on the states and taxing us to pay for such things as health care and President Obama’s secret plan to build a mosque in every town square in America. Not so, says some lawyer interviewed by a news service I’ve never heard of. According to CNSNews.com,
David B. Rivkin, a constitutional lawyer with Baker & Hostetler, told CNSNews.com that [Democrat Steny] Hoyer’s argument was “silly,” adding that if the general welfare clause was that elastic, then nothing would be outside of Congress’ powers.
“Congressman Hoyer is wrong,” Rivkin said. “The notion that the general welfare language is a basis for a specific legislative exercise is all silly because if that’s true, because general welfare language is inherently limitless, then the federal government can do anything.
“The arguments are, I believe, feeble,” he said.
As if to back up this randomly-quoted guy from some website, no less a figure than Jefferson himself also took a hard line with regard to the Tenth Amendment in the Kentucky Resolution of 1798 (against the Alien and Sedition Acts):
Resolved, That the construction applied by the General Government… to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument….
Powerful stuff. Jefferson clearly didn’t want those phrases to be interpreted to mean that the federal government had unlimited powers. And just to clarify, he added:
Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; [cites the 10th Amendment specifically]… therefore the act of Congress… intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.
This sounds pretty bad on the surface — it sounds like Thomas Jefferson, practically the face of republican democracy, didn’t think much of using the “General Welfare” clause to justify any and all acts of Congress, and that he was especially cranky about the federal government defining new crimes (such as, for example, making it a punishable offense not to have health insurance).
But Jefferson, especially as played by Stephen Dillane on The Sopranos, was always a bit of a reckless revolutionary, more inclined to ideological absolutism and resounding rhetoric than the nuts and bolts of practical lawmaking. The above business about the federal government’s ability to define crimes, for example, is clearly nonsense: if Congress has the right to create a national bank, for example, it obviously has the right to outlaw fraud against it and to prosecute said fraud. Who else, exactly, would prosecute fraud against a national institution?
Jefferson was a kind of prose berserker, a man who never let mundane realities curb his philosophical posturing, which is why he was the perfect person to write the Declaration of Independence — a florid recitation of grievances and an appeal to high-minded principles — and why the Constitution, on the other hand, was written by more sober, thoughtful, legalistic authors. Largely unencumbered by any petty drive to moral or intellectual consistency, Jefferson was able to appeal to both God and nature in his condemnation of the slave trade in the original draft of the Declaration while simultaneously exploiting slaves for profit until the end of his life.
Similarly, Jefferson was a fan of limited and enumerated powers when the federal government tried to trample on established rights (as in the Alien and Sedition Acts). But he saw no great threat to democracy in letting the Congress buy his books and help pay his debts — even if he had to resort to a sophist’s trick to justify the purchase. When his ire was up and his principles were outraged, he was an anti-federalist and a libertarian; but under ordinary circumstances, he was as interested as anyone else in a little government largesse.
And Jefferson was one of the strictest of the Founders when it came to the Tenth Amendment — like some today, he was even in favor of state nullification of improper federal laws. Others among the Revolutionaries and the Framers were less sure that the Tenth Amendment meant what Jefferson seemed to think it did. Alexander Hamilton, debating Jefferson on the constitutionality of a central bank, noted that:
Congress, says he [Jefferson], are not to lay taxes ad libitum, for any purpose they please, but only to pay the debts or provide for the welfare of the Union. Certainly no inference can be drawn from this against the power of applying their money for the institution of a bank. It is true that they cannot without breach of trust lay taxes for any other purpose than the general welfare; but so neither can any other government. The welfare of the community is the only legitimate end for which money can be raised on the community. Congress can be considered as under only one restriction which does not apply to other governments, they cannot rightfully apply the money they raise to any purpose merely or purely local.
But, with this exception, they have as large a discretion in relation to the application of money as any legislature whatever. The constitutional test of a right application must always be, whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object as how far it will really promote or not the welfare of the Union must be matter of conscientious discretion, and the arguments for or against a measure in this light must be arguments concerning expediency or inexpediency, not constitutional right. Whatever relates to the general order of the finances, to the general interests of trade, etc., being general objects, are constitutional ones for the Application of money.
Hamilton, an avowed Federalist, was of course vastly more comfortable with a strong central government than was Jefferson. But he was also much more involved in the drafting of the Constitution and therefore presumably in somewhat better position to interpret its more ambiguous clauses.
Nor was Hamilton alone in finding implied powers in the Constitution. “Brutus,” one of the anonymous authors of the Anti-Federalist Papers, noted unhappily in AFP #84 that Section 9 of Article 1 seems to directly imply powers not enumerated in Section 8:
We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted.
Two points, then, emerge out of the swirling darkness of our constitutional history. The first is that Jefferson and other anti-federalists were correct: institutions created by government have a way of taking on a life of their own, and an act as simple as establishing a law library for the members of Congress can lead to the creation of a large and permanent organ of governance, with a meaningful budget and actual legal powers. When you interpret governmental powers broadly, you run the risk of unintended consequences.
But Hamilton was right, too: by allowing the government latitude and discretion to “provide for the national defence and the general welfare,” you allow a flexibility that simply can’t be achieved by trying to add or subtract enumerated powers through a cumbersome constitutional amendment system. Today’s world, it is perhaps too easy to note, would have been completely unimaginable to the authors of the Constitution; Jefferson called them “demi-gods,” but even those Herculean thinkers in knee-britches couldn’t possibly have thought of everything a modern government might be called on to do. In their world, “health care,” a term which did not exist, would have meant a doctor to hold your hand and comfort you at the absolute best, leeches and the theory of humors at worst.
Here is a list of things Congress ought not to be allowed to do if we do not read the General Welfare clause broadly and wield the 10th Amendment lightly:
- Build interstate highways.
- Maintain an air force or, arguably, any sort of standing army.
- Provide social security benefits.
- Regulate local (i.e., non-interstate) pollution.
- Regulate food and drug safety as long as the products aren’t sold across state lines.
- Build monuments.
- Define federal crimes.
- Investigate federal crimes (goodbye, FBI!).
- Create national parks.
- Declare holidays.
- Engage in disaster management.
- Fund medical and scientific research.
- Subsidize farmers.
- Authorize civilian agencies to gather intelligence against foreign powers.
- Declare commissions on pornography.
- Found a national library.
Many people would like to get rid of some of the above government programs and practices; it’s a rare bird who wants to get rid of all of them. And so, as Hamilton argued, we should confine our arguments to “expediency or inexpediency,” and not get bogged down in narrow definitions of “constitutionality.”
It might be best for us to admit that the Constitution is, in places, quite poorly written and poorly thought out, and even when it is not, it is often irrelevant. The Supreme Court has more than once declared the Tenth Amendment to be very nearly a tautology — “a truism that all is retained which has not been surrendered.” To the degree that it is not tautological, it is fundamentally an obstruction to good governance and ought to be removed, or else amended so as not to be stupid.
It will not be removed or amended, of course, for the same reasons that the Second Amendment, now hopelessly outdated, will never be properly clarified — because the Bill of Rights is at this point a sacred text, and because 10 is a nice round number.
But the next time some nitwit governor or Tea Partier gets all sweaty and shiny-eyed at the prospect of invoking the Tenth Amendment as an end run around our national democratic process, just ask that person whether he’s ready to give up everything on the above list. (Hint: farm subsidies probably won’t be the first to go.)