1. A Publication of Hillsdale College
Imprimis Over 2,000,000 Reader s Monthly
September 2011 • Volume 40, Number 9
The Constitution and Limited
Government
Edward J. Erler
Professor of Political Science, California State University, San Bernardino
Edward J. Erler is professor of political science at California State
University, San Bernardino, and a senior fellow of the Claremont
Institute. He earned his B.A. from San Jose State University and
his M.A. and Ph.D. in government from Claremont Graduate
School. He has published numerous articles on constitutional
topics in journals such as Interpretation, the Notre Dame Journal
of Law, and the Harvard Journal of Law and Public Policy. He was a
member of the California Advisory Commission on Civil Rights
from 1988-2006 and served on the California Constitutional
Revision Commission in 1996. He has testified before the House Judiciary
Committee on the issue of birthright citizenship and is the co-author of The
Founders on Citizenship and Immigration.
The following is adapted from a speech delivered at a Hillsdale College National
Leadership Seminar on May 24, 2011, in Dallas, Texas.
Two cases that are currently making their way to the Supreme Court may
well in the short term decide the constitutional issue of the reach and extent of the
federal government. At stake, in other words, is the future of limited government.
And together, these two cases present an exceedingly odd situation. In the case of the
Arizona illegal alien law, the federal government is suing a state for constitutional
violations; and in the case of the Patient Protection and Affordable Care Act—that is,
Obamacare—more than half the states are suing the federal government, contesting
the Act’s constitutionality. It is indeed a litigious season.
But the Supreme Court’s decisions in these two cases may not be the last word,
because both of them present eminently political issues that will have to be decided
ultimately by the American people.
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2. Hillsdale College: Pursuing Truth • Defending Libert y since 1844
The administrative state, of course, Independent Payment Advisory Board. It
always seeks to extend its reach and mag- is a commission of 15 members appointed
nify its power. This is an intrinsic feature by the President, charged with the task of
of a system where administration and reducing Medicare spending. This com-
regulation replace politics as the ordinary mission has rule-making power which
means of making policy. If there are to carries the force of law. The Senate, it is
be limits to the reach of the burgeoning true, will have the power to override its
administrative state, they will be politi- decisions—but only with a three-fifths
cal limits imposed by the people in the majority. There are no procedures that
ordinary course of partisan politics. The allow citizens or doctors to appeal the
advent of the administrative state poses Board’s decisions. The administrative
the greatest challenge to limited govern- state—here in the guise of providing
ment, because it elevates the welfare of the health care for all—will surely reduce
community—whether real or imagined— the people under a kind of tyranny that
over the rights and liberties of individuals. will insinuate itself into all aspects of
The task today is to confine the federal American life, destroying liberty by
government to its delegated powers. The stages until liberty itself becomes only a
minions of the administrative state seek to distant memory.
destroy constitutional boundaries in their The advent and extraordinary suc-
desire to replace politics with administra- cess of the Tea Party movement, with its
tion. This is tantamount to denying that emphasis on restoring limited govern-
legitimate government derives from the ment, has made this a propitious time
consent of the governed, or that limited to rethink what the Framers meant by
government rests on the sovereignty of limited government and how they under-
the people. stood the relation-
One of the −´ ship between limited
Imprimis (im-pri-mis),
proofs offered in [Latin]: in the first place government and the
the Declaration of protection of rights and
Editor
Independence that Douglas A. Jeffrey liberties. It is rare to see
King George was Deputy Editor a people acting spon-
attempting to estab- Timothy W. Caspar taneously in a political
Copy Editors
lish an “absolute Emily Thiessen cause. The Tea Party
Tyranny” over the Monica VanDerWeide movement must be
Art Director
American colonies Angela Lashaway
regarded as a testament
was the fact that “He Marketing Director to the independent
has erected a multi- Fred Hadra spirit—the freedom-
Production Manager
tude of New Offices, Lucinda Grimm
loving spirit—of the
and sent hither Circulation Manager American people.
swarms of Officers to Wanda Oxenger
harrass our people, Staff Assistants
Robin Curtis
How did the
and eat out their sub- Kim Ellsworth Framers understand
Kathy Smith
stance.” Obamacare Mary Jo Von Ewegen limited government?
certainly fits the In the first place,
description of the Copyright © 2011 Hillsdale College limited government
The opinions expressed in Imprimis are not
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the scheme are stag- Patent and Trademark Office #1563325. government with small
gering. We have only government was the
to think here of the position of the Anti-
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3. September 2011 • Volume 40, Number 9 hillsdale.edu
Federalists who opposed the ratification its legitimacy—its just powers—from
of the Constitution. Limited government, “the consent of the governed.” This was
for the Anti-Federalists, meant a turning point in world-historical con-
government that was too weak to threaten sciousness: no longer would it be possible
the rights and liberties of the people. to argue that sovereignty belonged to gov-
Small government was, therefore, both ernments or kings—even if kings claimed
the necessary and sufficient condition appointment by divine right.
of political freedom. Consequently, In order to form just government, the
the Anti-Federalists preferred a purely people delegate a portion of their sover-
confederal form of government in which eignty to government to be exercised for
the states assumed priority. their benefit. The fact that only a portion
The Federalists, on the other hand, of sovereignty is ceded by the people is
regarded confederal government as an the origin of the idea of limited govern-
attempt to do the impossible: to cre- ment. The people delegate only some of
ate a sovereignty within a sovereignty. their sovereignty to government, and
Conflicting claims to sovereignty would what is not granted is retained by the
be debilitating and would render the gov- people—the people, for example, always
ernment of the whole ineffective—as was reserve (and can never cede) the ultimate
surely the case under our first constitu- expression of sovereignty, the right of
tion, the Articles of Confederation. revolution. The Declaration describes this
The Framers of the Constitution right as “the Right of the People to alter or
settled upon a novel design for govern- to abolish” government when it becomes
ment, one that Madison said was “partly destructive of its proper ends—namely,
national, partly federal.” For some pur- the protection of the safety and happi-
poses, Madison explained, we will be one ness of the people. This right of revolu-
people; for others, we will be multiple tion, as understood by the Founders, was
peoples. With respect to the national the right that secures every other right,
features—those things that concern the because it serves as a constant reminder
nation as a whole—the federal govern- of the sovereignty of the people.
ment will have sovereignty—complete and The Anti-Federalists never under-
plenary power to accomplish the objects stood these revolutionary implications;
entrusted to its care in the Constitution. they seemed to believe still that govern-
Those objects are principally found in ments, not the people, were the ultimate
Article I, Section 8 of the Constitution. repositories of sovereignty, and that the
National defense, for example, is exclu- only way to secure the rights and liberties
sively delegated to the federal government. of the people was to weaken the power
And since the exigencies that face nations of government—as if freedom existed
in foreign affairs are unpredictable and only in the exceptions to government
innumerable, the federal government power. But as Madison wrote, “Energy in
must have sovereignty to fulfill this del- government is essential to that security
egated trust. And if that trust is to be against external and internal danger and
fulfilled, the federal government must to that prompt and salutary execution of
also be accorded the necessary means to the laws which enter into the very defini-
achieve that end. If this entails large gov- tion of good government.”
ernment—and today it surely does—then What limits the federal government
large government must be compatible is not a limit on its power to act, but the
with limited government. Similar reason- limited range of objects entrusted to its
ing applies to all the objects delegated to care—the enumerated powers of govern-
the care of the federal government. ment. The powers not delegated to the
The Declaration of Independence federal government nor forbidden to the
provided the authoritative statement of states in the Constitution (e.g., ex post facto
America’s political principles. For the laws, bills of attainder, and laws impairing
first time, government was said to derive the obligation of contracts) are reserved
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4. Hillsdale College: Pursuing Truth • Defending Libert y since 1844
to the states. These are the police powers, Department to intervene. And to the sur-
which are generally described as the power prise of many, the Justice Department’s
to regulate the health, safety, welfare and lawsuit did not seek to enjoin the law based
morals of the citizens of the states. on racial profiling or equal protection or
In cases of conflict, the supremacy due process, arguing instead that the law
clause of the Constitution gives prefer- conflicted with the federal government’s
ence to the federal Constitution and laws exclusive power to regulate immigration.
made in pursuance of the Constitution. Perhaps someone had explained to the
The supremacy clause was described Attorney General that “reasonable suspi-
by Madison as an essential improve- cion” has been a part of our due process
ment over the Articles of Confederation. jurisprudence for many years. It means
Where there is no final authority to that a police officer can question on sus-
arbitrate disputes between the federal picion that is less than probable cause;
government and the states in this “com- reasonable suspicion, of course, must be
pound Republic,” government will be something more than a hunch or a guess
paralyzed. Madison confessed, however, or an intuition—it must be based on
that the exact boundary between the articulable facts. In addition, the Supreme
powers of the federal government and the Court in 1975 ruled that ethnicity could be
state governments will be impossible to one of the factors determining reasonable
determine in advance. The precise lines suspicion. The Arizona law, in contrast,
of demarcation will have to be worked disallowed any use of ethnicity in deter-
out in practice. The Supreme Court—and mining whether a person could be asked
through the supremacy clause, the state about his immigration status.
courts—will have to determine conflicts In United States v. Arizona, the
on a case by case basis. Federal District Court judge enjoined the
operation of the law because it intruded
An illustration of the difficulties upon the federal government’s exclu-
of drawing clear lines between federal sive power to regulate immigration and
and state authority in our “compound control foreign policy. On appeal from
Republic” is the Arizona illegal the District Court, one piece of evidence
immigration bill, passed in April 2010. adduced by the Ninth Circuit Court of
The law allowed police officers to verify Appeals that the Arizona law was an
the immigration status of any person unconstitutional impingement upon the
after a valid stop or arrest if there “is a federal government’s exclusive power to
reasonable suspicion that the person is conduct foreign policy was the fact that
unlawfully present in the United States.” the President of Mexico and the heads of
Everyone remembers the hysteria that several other Latin American countries
was unleashed when the bill passed. The had expressed severe criticisms of the
President called the law irresponsible, bill both in the press and in amici briefs!
saying that it threatened “basic notions Rarely do we encounter such humor in
of fairness.” Others said the provision of court opinions, however unintended the
the bill relying on “reasonable suspicion” humor might be.
would mandate racial profiling; and some The Constitution, of course, does not
of the more hysterical commentators even specifically grant control over immigra-
insisted that the law was tantamount to tion to the federal government. Instead
genocide. The Assistant Secretary of State Congress has power to “establish a uni-
felt compelled to apologize to members of form Rule of Naturalization.” Control
a Chinese delegation visiting the United over naturalization, however, seems to
States for this egregious assault upon imply control over immigration—so
human rights. One can only imagine uniform rules governing immigration
the bemused looks on the faces of the would seem, by necessary implication,
Chinese delegation. to fall within the scope of federal power.
The President ordered the Justice The real question here—although it was
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5. September 2011 • Volume 40, Number 9 hillsdale.edu
not addressed by the District Court or and prosperity of the State.” This exten-
the Court of Appeals—was what power, sive power reserved to the states should
if any, devolves upon state governments weigh heavily on preemption decisions.
when the federal government fails to In this light, the Arizona law seems to
carry out its obligations. The District have been a clear exercise of the state’s
Court had candidly noted that the police powers, and any burden imposed
Arizona law was passed “against a back- on the federal government to have been
drop of rampant illegal immigration, incidental and insignificant.
escalating drug and human trafficking
crimes, and serious public safety con- Obamacare is another issue
cerns.” In the face of federal inaction or that tests our understanding of the
manifest indifference, does Arizona have Constitution and the role of limited
the reserved power—indeed the obliga- government. In federal courts, the Obama
tion—to secure the safety of its citizens? administration has defended the bill
The President’s recent remarks that the as a legitimate exercise of Congress’
border has been secured and that it is power to regulate commerce. At issue
now time to think of providing a path to here is the individual mandate that
citizenship for illegal aliens is, in reality, forces individuals to purchase health
a statement of declared indifference to care insurance and carries a penalty for
the people of the State of Arizona and to failure to do so. Congress has the power
all the border states similarly situated. to regulate commerce; but does it, as here,
Surely those states have the constitutional have the power to create commerce—i.e.,
right, sustained by their police powers, to force individuals to engage in interstate
to protect themselves through laws that commerce by purchasing health care
are as unobtrusive as the Arizona law. insurance from private providers? Another
But in the District Court’s judgment, the way to look at the issue would be to ask
Arizona law invoked “an inference of whether, under the commerce clause,
preemption” because it placed an “imper- Congress has the power to regulate
missible burden” on federal “resources inactivity, i.e., the refusal to buy insurance.
and priorities” and inevitably “will result This would indeed be a novel extension
in the harassment of aliens.” The burden of commerce clause jurisprudence and
on federal resources stems from the fact utterly impossible to square with any
that there will be an increased number notion of commerce that was held by the
of requests to verify immigration status. framers of the Constitution.
This increased burden will in turn force In addition to the commerce clause
the immigration services to reallocate argument, the Obama administration
resources away from other priorities. maintains that the individual mandate is
Such is the logic of the District Court. authorized by Congress’ power to tax and
These reasons seem trivial when com- spend for the general welfare. Congress’
pared to the real and pressing dangers power here is extensive. Over the years,
that Arizona faces as a result of federal the Court has generally deferred to
inaction and indifference. Surely this is Congress in determining what constitutes
not what the Framers had in mind when the general welfare. This is proper, since
they crafted the supremacy clause, while Congress represents the nation and what
at the same time reserving to the states promotes the general welfare is essentially
the essential responsibility of protecting a political question. If Congress deter-
the safety and welfare of their citizens. mines that a universal health care system
Madison wrote in The Federalist that “the serves the general welfare, then the courts
powers reserved to the several States will will not interfere. The power to “lay and
extend to all the objects which, in the collect Taxes,” however, has been subject
ordinary course of affairs, concern the to judicial scrutiny. While Congress may
lives, liberties and properties of the peo- tax for the purpose of raising revenue,
ple, and the internal order, improvement, it may not use the power of taxation for
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6. the express purpose of regulation. A tax the fact that President Obama confidently
that is merely a subterfuge for regulating assured the American people that there
activities will not be allowed, although would be no new taxes to support the
a tax that only incidentally regulates medical insurance scheme, no amount
behavior will pass constitutional muster of administrative indirection should be
as long as the principal purpose is raising allowed to convert a penalty into a tax
revenues. for raising revenue. This is not a revenue
Madison argued that the general wel- raising measure and therefore cannot
fare clause was actually a limitation on be justified under the general welfare
the federal government. Taxes could be clause.”
imposed and money spent only for the But here is a somber thought: If,
general welfare—meaning the welfare instead of using the individual mandate,
of the whole of the American people. It Congress had relied on its general revenue-
is true that Alexander Hamilton had a raising powers, under current Supreme
more extensive view of the general wel- Court doctrine, it is almost certain that
fare clause, but throughout much of our Obamacare would be constitutional. It
history Madison’s view prevailed. Today, would be an example of Congress spend-
however, the idea that the general wel- ing money for the general welfare.
fare clause was ever intended as a limit
on the reach of government has been In conclusion, the only certain
destroyed by the progressive architects method of defeating universal health
of the welfare state. care and other cases of federal over-
In any case, if the individual mandate reach—as it appears that the American
is to be defended under the general wel- public desires to do—is political opposi-
fare clause, what the plain language of the tion. A political party dedicated to genu-
bill calls a penalty must be regarded as a inely limited government—not small
tax for the express purpose of raising rev- government—is an urgent political task.
enue. If the penalty can be sold as a tax, Whether the Tea Party is up to this task
the Obama administration argues, then remains to be seen—but it is probably
Obamacare is authorized by the general our best hope. The Tea Party will have to
welfare clause. In the Florida District learn, however, that the task today is not
Court case, the Justice Department to weaken the power of government—
made the wholly tendentious—not to say it is to confine the government to the
absurd—argument that since the IRS was exercise of its delegated powers and to
charged with administering the individ- restore to its full vigor the partly nation-
ual mandate and collecting the penalties, al, partly federal form of government
this was sufficient to convert a penalty that was the legacy of the Founders. ■
into a tax. But as Florida District Court
Judge Roger Vinson remarked: “Besides