by Wilton H. Strickland

One of the few benefits of a crisis such as the one we’re enduring is that it focuses people’s attention on fundamental matters, the ones that often drift in the back of our minds gathering dust. The debate now raging over the legitimate scope of government power has catapulted the Constitution to the forefront of America’s collective consciousness, given that this short document embodies “the supreme law of the land” and sets the outer boundary on what the federal and state governments may do.

Americans feel great reverence for the Constitution but often struggle to understand it, particularly because lawyers have taken it hostage and claim sole authority to interpret it. This stems from our early days in law school when our professors preached that the Supreme Court — by virtue of its 1803 decision in Marbury v. Madison — has final say on what the Constitution truly means. From that moment onward, lawyers tend to treat the dense patchwork of decisions emanating from the Supreme Court as if it were the Constitution itself. Much like the denizens of Plato’s cave, lawyers fixate on these shadows rather than on the light that produces them. This is a serious mistake, for courts are merely one branch of government and thus inferior to the Constitution; indeed, the entire point of Marbury v. Madison is that the Constitution trumps the government whenever the two come in conflict, so the decisions of government courts should not be regarded as holy writ. Their decisions bind the litigating parties and the lower courts, not every man, woman, and child across the fruited plain.

At the risk of breaking ranks with fellow members of my profession, let me say that the Constitution does not belong to lawyers; it belongs to everyone in America, a land where the people are sovereign and possess final authority over whether government — which is the people’s servant — is doing its job.

In this post I will summarize the major aspects of the Constitution in as objective a manner as I can. I don’t expect everyone to agree with me, nor would I want that. What I want is to share useful information and motivate you to do your own thinking rather than entrust fundamental matters to “experts.” America was founded on the notion of personal freedom nourished by personal responsibility; if we surrender responsibility, it should come as no surprise that freedom ebbs away along with it. Right now is a very good time to assume more responsibility over our lives.

Federal Power Under The Constitution

The Constitution is a treaty among the states to create the federal government and delegate a sliver of their powers to it. The federal government’s powers are few and enumerated, meaning that the federal government may exercise only those powers specified in the Constitution, while the states retain all powers not delegated nor otherwise prohibited. This arrangement is memorialized in the Tenth 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.”

What this means is that whenever the federal government acts, we must determine whether such action is authorized by the Constitution. If it is not authorized, it is unconstitutional. This is the opposite of state action, which must be presumed valid unless the Constitution forbids it, as discussed further below.

Article I of the Constitution makes Congress the primary policymaking body and describes the inner workings of its two chambers, the House of Representatives (where membership reflects each state’s population) and the Senate (where membership reflects sovereign equality by allowing two senators from each state, regardless of population). Section 8 is where Article I sets forth Congress’s powers. It begins with a general statement that Congress will have the power to lay taxes and provide for the common defense and general welfare, then goes on to enumerate the specific ways that Congress may do so:

• to borrow money;
• to regulate commerce with foreign nations, among the States, and with Indian tribes;
• to establish rules of naturalization and bankruptcy;
• to coin money;
• to punish counterfeiters;
• to establish post offices and post roads;
• to issue patents;
• to establish federal courts inferior to the Supreme Court;
• to punish crimes committed on the high seas or in violation of international law;
• to declare war;
• to create armies;
• to create a navy;
• to regulate the armed forces;
• to call forth State militias to execute federal laws, suppress insurrection, or repel invasion;
• to organize and arm the State militias;
• to govern the District of Columbia and newly-acquired territories; and
• to make laws necessary and proper for carrying out the already-mentioned functions.

The list is short indeed. Congress was not vested with a general “police power” to regulate public health, safety, or morals; such power remained with the states and is far too expansive to capture in a list.

James Madison — known as “the father of the Constitution” — made it clear during his presidency that Congress may not spend money or pursue other goals that do not appear in Article I, Section 8. Upon vetoing a bill that would have showered funds on various districts for “internal improvements,” Madison explained that no enumerated power authorized this. He emphasized that Section 8’s statement of purpose – to provide for the general welfare – is not an independent grant of authority, since to read it that way would render the list of enumerated powers “nugatory and improper.” He also emphasized that the power to regulate interstate commerce is merely “remedial” and meant to avoid the “known inconveniences” of protectionism; thus the power is merely to keep commerce “regular” and unimpeded. Finally, he noted that the “necessary and proper” power must be linked to “those other powers” in Section 8; if none of those other powers are triggered, neither is the “necessary and proper” power. 

Congress today exercises authority far beyond what is enumerated and without regard for Madison’s viewpoint. During the twentieth century the Supreme Court held that Congress may spend money on anything to promote “the general welfare” as Congress sees it, unrestrained by enumerated powers (which is why swarms of lobbyists infest Capitol Hill and why we have a massive budget deficit). The Supreme Court also held that the power to regulate interstate commerce extends far beyond such activity and encompasses anything that might affect interstate commerce, no matter if those activities occur within a state or are non-commercial. In other words, the power to regulate interstate commerce has been re-imagined by the Supreme Court as a power to regulate that which is neither interstate nor commerce. This has enabled Congress to assume vast new powers, such as waging a “war on drugs” without benefit of a constitutional amendment (though an amendment was necessary to enact Prohibition against alcohol in the early twentieth century).

Article II is shorter than Article I and addresses the powers of the president, who is the commander-in-chief of the armed forces “when called into the actual service of the United States,” thus deferring to Congress’s sole authority to declare war. Apart from that, the president is to execute legislation approved by both Congress and himself, appoint federal officers, and engage in foreign affairs; the president does not have the authority to create laws or initiate war on his own. The president also may negotiate treaties, but in order to take effect the Senate must give “advice and consent” with a two-thirds majority.

As with Article I, the Supreme Court has blessed (either directly or through inaction) the expansion of presidential authority under Article II. Congress has not declared war since World War II, yet the president has waged war many times since then. The president often announces “executive orders” that carry the force of law despite lacking congressional authorization. The president also enters “executive agreements” with foreign nations despite lacking advice and consent from the Senate.

Article III is shorter still, establishing the United States Supreme Court, describing its jurisdiction, and allowing Congress to create lower federal courts and set the punishment for treason. Congress could, if it wished, abolish some or all of the lower federal courts. Under Article III Congress also could carve out “exceptions” to the jurisdiction of all federal courts, including the Supreme Court, thereby prohibiting them from ruling on certain issues (this has been proposed from time to time on hot-button issues such as abortion, though it hasn’t happened yet).

Article IV outlines procedures for how new states should be admitted to the Union and interact with each other.

Article V establishes the amendment procedure and requires supermajorities among the states and within Congress to update the Constitution to suit changing times. Article V also allows the states, on their own initiative, to call for a convention to propose any number of amendments they might wish. Courts do not have the authority to alter or amend the Constitution to keep pace with modern life. That awesome power belongs to the people through our elected representatives, as established by Article V.

Article VI contains the renowned Supremacy Clause declaring that the supreme law of the land consists of the Constitution, all federal laws “made in pursuance thereof,” and treaties made “under the authority of the United States.” The Supremacy Clause is often misinterpreted to mean that a federal law automatically trumps any contrary state law, but this is incorrect. Only a constitutional federal law may trump state law. The mere existence of a federal law does not entitle it to supremacy — it must be shown to be authorized by the narrow, enumerated powers in the Constitution, for otherwise it is void.

That leaves Article VII, which briefly establishes how the Constitution will become effective.

Several amendments have been added to the Constitution, and chief among these are the Bill Of Rights, which I will discuss further below.

State Power Under The Constitution

As discussed above, the states are the original sovereign units that consented to the Constitution, and they retain all authority not delegated nor prohibited thereby. This residual authority is vast and includes a general “police power” that the federal government lacks, meaning the power to protect or advance public health, safety, and morals in virtually any manner that the citizens of the state see fit.

Just a few examples of the police power include criminal law; licensing of professions; workplace regulations; marriage, divorce, and child custody; estates and inheritance; insurance regulation; schooling; food and drug safety; contract law; property law; tort law (i.e., private lawsuits to recover for harms other than breach of contract); or public services such as police, firefighters, EMTs, and more.

The main body of the Constitution places very few restrictions on what states may do. Most of these restrictions appear in Article 1, Section 10, which is worth taking the time to read (along with the rest of the Constitution, of course). Perhaps the most important restrictions are the following:

• no bills of attainder (i.e., no legislation that directly imposes a punishment on a person or group of people);
• no ex post facto laws (i.e., no legislation that criminalizes certain types of behavior after the fact); and
• no laws impairing the obligations of contracts

Although the Constitution leaves states with broad authority, it’s important to remember that each state has its own constitution that provides an additional layer of restrictions on what a state may do. Indeed, it’s often the case that state constitutions go further than the federal Constitution to safeguard individual rights, so I encourage you to read your state’s constitution as well.

The Bill Of Rights — Not What You Have Been Led To Believe

Now we come to the part of the Constitution that many Americans today are most interested in, the Bill of Rights, which comprise the first ten amendments that were adopted shortly after the Constitution as part of a bargain between the federalists (who favored creation of the federal government) and the anti-federalists (who opposed it). What I’m about to say may sound outrageous or radical, but it is historical fact. The Bill of Rights applied only to the federal government, not the states.

None other than Chief Justice John Marshall — who authored Marbury v. Madison establishing the power of judicial review — acknowledged in Barron v. Baltimore that the Bill of Rights applied only to the federal government as a safety measure designed by the founders. The anti-federalists worried that the federal government would be too powerful and venture beyond its enumerated powers (rather prophetic), so they insisted on the Bill of Rights as additional security against this new government. The very language of the First Amendment, for example, restricts what “Congress” may do, not what states may do. The Second Amendment emphasizes that the right to bear arms is vital to preserving “the security of a free State” via the use of a “well-regulated Militia,” which is a group of armed citizens who might be called into the service of their state if the need arises. In other words, the goal was to restrain the federal government while protecting the state governments, not to restrain the state governments.

For many years the states had free rein over activities that the Bill of Rights placed beyond the federal government’s reach. For example, states could and often did establish official churches, since the states were not bound by the First Amendment’s ban on establishments of religion. States outlawed various forms of speech, such as obscenity or shouting “fire” in a crowded theater, even though the federal government had no such authority. States regulated the ownership and use of arms, again even though the federal government had no such authority. If someone disliked a state’s policies, his or her remedy lay in petitioning that state’s government or in moving elsewhere to find a more palatable way of life. The very multiplicity of states was an effective check against oppression, for if a state abused its power it would wind up harming itself by scaring off its tax base. It was an ingenious, competitive, and self-correcting system.

That system has been abolished. What we have today is a system of centralized oversight of the states’ activities, often through federal courts, where disgruntled citizens frequently invoke the Bill of Rights to sue state governments. How did this change come about? How did the Bill of Rights suddenly apply to the states?

The answer is that the Supreme Court decided to do this beginning in the late nineteenth century and early twentieth century. According to the Supreme Court, certain language in the Fourteenth Amendment that guarantees due process of law and equal protection of law makes the Bill of Rights applicable to the states and limits their power even beyond what the Bill of Rights says, in a manner that remains unclear and is announced by the Court on a case-by-case basis.

This turn of events is bizarre when considering that the Fourteenth Amendment was not viewed this way when it was adopted much earlier in 1868, not even by the Supreme Court itself. In its Slaughter-House Cases decision of 1873, the Supreme Court explained that the key provisions of the Fourteenth Amendment were adopted after the Civil War to achieve a narrow goal: to guarantee that the former slaves (African Americans) enjoyed the same civil rights as everyone else. The Court rejected the argument that the Fourteenth Amendment had a broad scope or empowered the Court to veto state laws with the regularity that it does today, as follows:

Was it the purpose of the fourteenth amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? . . .  [S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . .  [T]hese consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; . . . the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character . . . .

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

The modern Supreme Court has rejected its former, narrow view of the Fourteenth Amendment and now invokes it to veto state laws for almost any imaginable reason. At first the Court did this to channel the spirit of the Gilded Age (laissez-faire capitalism) and strike down state laws that regulated economic activity. As time went by the Court changed its priorities to ignore regulation of economic activity and, instead, strike down state laws that regulate social activity. But it all amounts to the same thing — the Justices of the Court could not resist the urge to transform themselves into philosopher kings with final say on which state laws are prudent and just.

Court decisions that require states to erect a “wall of separation” between church and state; or that prohibit states from penalizing various forms of offensive speech; or that prohibit states from regulating the use and ownership of arms; or that prohibit states from outlawing abortion; or that impose any number of other restrictions would all come as a shock to the framers of the Constitution and of the Fourteenth Amendment.

Our current relationship with the Bill of Rights is most unusual and not what was intended. For much of its history the Bill of Rights was a device that limited federal power while protecting state power, but now it has become quite the opposite: a device that expands federal power while limiting state power.

COVID-19 Through A Constitutional Lens

There are so many constitutional issues implicated by the COVID-19 crisis that I could not hope to address them all, let alone a significant portion of them. What I can do is give a small sample of my thoughts and, with luck, motivate you to think about these issues as well.

Under the Constitution as written and intended, the federal government has only a few tools to tackle the COVID-19 crisis. For example, the federal government can restrict the movement of people into and out of the country, or regulate interstate commerce in a manner designed to ensure delivery of necessities or slow the spread of the virus, both measures already being put to use. However, the federal government cannot give “bailouts” to well-connected industries or issue “stimulus payments” to private citizens, both types of expenditures divorced from the enumerated powers in Article I, Section 8. The federal government also cannot suspend or cancel tenants’ duty to pay rent. Such a measure not only exceeds the enumerated powers, but it also likely amounts to an uncompensated taking of private property in violation of the Fifth Amendment.

Under the Constitution as written and intended, the state governments have many more tools at their disposal. State governments can impose lockdowns, prohibit the assembly of people (even in churches, synagogues, or mosques), seize vital resources, impose price controls, or take other emergency measures calculated to protect public health and safety, all unrestrained by the Bill of Rights. State governments cannot, however, violate their own constitutions where applicable, and it is likely that such violations have occurred. State governments also cannot suspend or cancel tenants’ duty to pay rent, since this impairs the obligations of existing, legal contracts in violation of Article I, Section 10 of the U.S. Constitution.

Under the Constitution as re-imagined by the Supreme Court . . . all I can say is that anything is possible. The Court has a history of deferring to the political branches in times of crisis, such as by allowing punishment of free speech or the outright detention of American citizens who have committed no crime. So, even though the Supreme Court believes that both the federal and state governments are bound by the Bill of Rights, do not be surprised if that belief is temporarily shelved for the sake of convenience.

Conclusion

This was a lengthy post, so congratulations if you managed to read it all. My hope is not to persuade you that I am right, but rather to persuade you to think seriously about these issues and come to your own conclusions. Our future as a country could depend on it.

UPDATE (May 30, 2020)

As I predicted above when stating that the Supreme Court in this time of crisis will shelve its belief that the Bill of Rights restricts the states, the Supreme Court has held that the First Amendment does not restrict California from interfering in people’s free exercise of religion.