Gather ’Round for a Reading of the Constitution

Let President Obama, Sarah Palin, Glenn Beck, John Boehner and their fellow Americans gather round. The House of Representatives is preparing to open the 112^th United States Congress by reading aloud the Constitution. It will be a fitting capstone to an election in which the cry of constitutional conservatism was heard throughout the land. The entire 8,000 words of the document will be worth listening to, but as we are in a time when a great lunge is being made to expand the federal government, few parts of the Constitution will be more timely than Article One, Section Eight.

This is the part of the Constitution that enumerates the things Congress has the power to do. There are a few other places in the Constitution where powers are granted to Congress — for example, after the Civil War, Congress was granted the power to enforce the 13^th Amendment, which ended slavery, by passing appropriate legislation. But Article One, Section Eight, is the main listing of Congress’s powers, some of which have proved, over the years, more important than others.

“Congress,” Section 8 begins, “shall have the Power To Lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States.” This granted Congress a power that the federal government lacked under the Articles of Confederation. Mark, however, that Congress is not granted the power to tax for any reason it wants but only to pay debts, defend the country, and attend to welfare that is general in nature.

One of the wordsmiths of the final draft of the Constitution, Gouverneur Morris, chafed at the restrictions implied by the grammar of this phrase. So he tried to change the comma after the word “Excises” to a semi-colon. That would have made the language that followed a general grant of power to spend, rather language designed to limit the taxing power.

His plot was discovered and the comma restored. One constitutional scholar, Philip Hamburger of Columbia Law School, has written: “Rarely has so much rested on so small a point.” It turns out on this small point may rest the future of Obamacare, for which the government is arguing in court that its authority is based on, among other clauses, the taxing power.

There are, depending on how one counts the lists in various clauses, more than 20 powers given to Congress in Section 8. One is given the power “To Coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” Why did the Founders of America put the power to coin money and regulate its value in the same sentence as that in which it put the power to fix the Standard of Weights and Measures? What does that choice imply about the meaning of money?

And what did the Founders of America mean by the word “dollars,” which, if one listens closely, one can hear twice in the Constitution? Listen in vain, however, for the definition. For it turns the dollar isn’t defined in the Constitution. That’s because the Constitution didn’t create the dollar; it already existed. Everyone knew that it was a reference to a coin called the Spanish milled dollar; using its enumerated power, Congress promptly defined a dollar as the same amount of silver as was in a Spanish milled dollar — 371 ¼ grains — or the free market equivalent in gold.

Listen also in Section Eight to the exact phrasing the of the Commerce clause, which says that Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Does that give the federal government the power to reach into foreign countries and regulate commerce there? Or into the Indian tribes and regulate commerce there? Or into the individual states of the United States and regulate commerce there?

In the coming months, these questions will be percolating in the courts, because it is partly under the commerce clause that the Obama administration is defending the legislation known as Obamacare. But it’s not only Obamacare. The federal government has actually tried to use the commerce clause to regulate the carrying of guns in or near schools. It was defeated in the Supreme Court in one famous case.

Now a number of states are passing laws defining “state-made” firearms that are made and sold within one state for use within that state. The reasoning is that the commerce clause suggests if a weapon is not in inter-state commerce, it is beyond the reach of federal regulation — a claim that is being challenged by the Obama administration and may yet reach the Supreme Court.

Since our nation is at war, hearken, too, to the war-powers enumerated in Section 8. It is where Congress is granted the power to raise armies, provide and maintain a navy, and declare war. But note the clause just after the one that gives Congress the power to declare war. It assigns Congress the power to grant letters of marque and reprisal. Why is that instrument — a license to private parties to carry out acts of war — not more widely used in this age of piracy and terrorism?

That is a question that is being pressed by, among others, Congressman Ron Paul, who within days of September 11, 2001, introduced a bill called the Letter of Marque and Reprisal Act of 2001 to grant such letters against Osama Bin Laden. The bill has been re-introduced in each Congress, and may yet spotlight a bedrock Congressional power that has been nearly forgotten.

Not all enumerated powers favor what might be called the conservative side of America’s political debate. Keep an ear out for the clause that says Congress has the power to establish what the Founders called “an uniform Rule of Naturalization.” It seems, on the face of it, to favor not, say, Arizona but the federal government in the matter of dealing with immigrants who came across the border without papers — if only the federal government will step up.

There is much worthy of a public reading in the other articles and sections of the Constitution. But Section 8 is where the bulk of our government’s powers are granted. All else that is not forbidden to the states is left to the states or to the people directly. Enumerated powers, we predict, is the ground that will open before us as we set out on the great constitutional battle precipitated by the reach for vast new powers being made by the Obama administration.