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The Power and Jurisdiction: A History of Limited Government in America pt. 2

Published in Blog on May 21, 2024 by Jakob Fay

The Power and Jurisdiction: A History of Limited Government in America pt. 2

Last week, we learned that the American experiment in liberty arose from the Americans’ civil ache to escape the heavy hand of the British Empire and re-embrace the old ways of self-governance. Eleven years after breaking away from the Crown, the 1787 Constitutional Convention convened with key figures who had shepherded the young nation through the tumult of the Revolution: they sought to embed the cherished principles of limited government into the foundation of the emerging Republic. In the second installment of this series, we’ll delve into how those principles manifested within the resulting Constitution.

The Dawn of a Constitutional Republic

Comprising the lengthiest segment among seven parts, Article I of the U.S. Constitution delineates the federal congressional authority, divided between two distinct bodies: the House of Representatives and the Senate. “All legislative Powers herein granted shall be vested in a Congress of the United States,” “We the People” declared in Section 1.

What might seem like an unexceptionable statement is more important than most Americans realize. Constitutional attorney Michael Farris explains,

“Some people think that the most important provision in the Constitution is the First Amendment. Others would say the Second Amendment. Those are very, very important, of course.

But the Founders had a different idea. One of the reasons I say this with confidence is that both of these essential liberties are found in amendments that came four years after the Constitution was written.

I would suggest that the Founders located their most important provision right where you couldn’t miss it. Article I Section 1. This is where you find the provision that makes us a Republic: All legislative authority is vested in the Congress.

This means that the President can’t make law. The bureaucracy can’t make law. The courts can’t make law. And, for heaven’s sake, the U.N. can’t make law.

In a Republic, only elected legislators can make law.”

This distinction is crucial. Indeed, we can see the Founders’ dogged commitment to limited government in that they entrusted all legislative power to the people’s elected representatives. However, as revealed in Article V, they also foresaw that even Congress might one day succumb to tyranny. Therefore, they included additional safeguards to ensure that, even in such a scenario, the people would retain the means to reclaim control of power.

The following seven sections detail the operations of this federal legislative branch (qualifications for members, how to deal with vacancies, etc.). Not every specific still applies today. For example, Section 3 prescribed the selection of Senators by state legislatures. However, that landscape changed with the ratification of the XVII Amendment in 1913.

Section 8, which enumerates Congress’s limited powers, is particularly relevant to our discussion. This crucial listicle implies (and future amendments confirm) that Congress possesses these responsibilities only: the power to lay and collect taxes, borrow money, regulate commerce, establish uniform rules of naturalization (conferral of U.S. citizenship), print money, punish counterfeiting, establish post offices, protect intellectual property, inaugurate tribunals (lower courts), punish piracy, declare war, support an army and navy, organize militias, administer the seat of American government (the District of Columbia), and make all laws which are necessary and proper for carrying out the powers and duties “vested by this Constitution in the Government of the United States.”

That final clause is noteworthy. More than an open-ended invitation to act however it sees fit, the necessary and proper clause empowers Congress to pursue means requisite only for the accepted function of government as laid out in the Constitution. If not already “vested by this Constitution in the Government of the United States,” Congress has no authority to regulate.

Perhaps most misunderstood among the bunch is the first clause, the power to lay and collect taxes, a persistent workaround the other constitutional restraints on Congress’s power. Due to the allegedly indeterminate nature of the phrase “the general welfare” (Congress shall have the power to lay and collect taxes to provide for the general welfare of the United States), elected officials have frequently abused this clause to justify petty, parochial spending. However, as Senator Rand Paul recently explained, that was not the Founders’ intention. 

“It has to be for the general welfare of all people of the United States,” he said. “You can tax people generally, but you have to spend the money generally…. It can’t be for Bubba Gump’s shrimp museum in Louisiana.”

Only one article into the nation’s governing charter, and we can already detect the indispensable underpinnings of limited government, imbued into the heart of our legislative branch. In future entries, we will examine these principles further, exploring how they influence the rest of our exceptional Constition.

Read part one of this series here.

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