What are the most common myths about the Constitution?
From the necessary and proper, general Welfare and commerce clauses, to the preamble, federal “supremacy” and more – there are a lot to choose from. The hardest part about putting this list together was keeping it to just the top-five.
For your reference, you’ll also find 11 responses to these myths – articles, videos and an in-depth podcast interview, too.
“The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.”
-Nancy Pelosi (2009)
Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Pelosi as “frivolous”?
“Are you serious?” Nancy didn’t even want to answer a question about the Constitution.
Here’s how James Madison described the Commerce Clause: it “was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government.”
Simply put, under the Constitution, the Commerce Clause is not something that authorizes the federal government to regulate, control, or prohibit anything and everything they want.
4. The Preamble
“The Preamble should guide our understanding of the Constitution.”
Because the Preamble to the Constitution has beautiful, sweeping prose – and is quite broad in what it says – supporters of the monster state love to rely on it to justify their favorite federal programs or proposals.
Leading “living, breathing constitution” advocate Erwin Chemerinsky (who is often called upon by mainstream media reporters to be the “expert” who refutes our work here at TAC) says the Preamble “should guide the interpretation of the Constitution.”
Unsurprisingly, this is totally untrue.
In an important article, Mike Maharrey cited James Madison in opposition to Erwin’s view:
“They will waste but little time on the attempt to cover the act by the preamble to the constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissable effect, of rendering nugatory or improper, every part of the constitution which succeeds the preamble.”
For us, if it’s a choice between Erwin’s view or Madison’s, we’ll go with the “Father of the Constitution” every single time.
3. Necessary and Proper
The “necessary and proper” clause provides constitutional authorization for much of what the feds do today.
“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand. The federal government began abusing this clause within years of ratification. In 1800, James Madison countered these early abuses, forcefully arguing that it’s not elastic at all, and doesn’t give the government any additional powers.
Under the Constitution, there are three criteria that need to be met for something to be both “necessary” and “proper.”
- Necessary to carry out the original purpose – like purchasing corn from a farmer to sell in the grocery store.
- A customary way of carrying out the original purpose. The guy running my grocery couldn’t get rid of all the food and sell porno because that would clearly not constitute a customary way of running a grocery store
- An incidental power can never rise to a level greater than the original power delegated. My grocery store manager would have the authority to pay a mechanic for fixing the broken freezer. But he wouldn’t have the power to sell the building and invest the money in the stock market for me.
2. general Welfare
“The general welfare clause gives the federal government the power to run social welfare programs”
At the Virginia ratifying convention, Edmund Randolph said that reading the general welfare clause as a broad grant of power would “violate every rule of construction and common sense.” (101 second video here)
As Thomas Jefferson put it in an 1817 letter to his friend Albert Gallatin:
“Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”
In this full one-hour podcast interview that I recorded back in 2009, you’ll get a great lesson on the clause. You’ll learn about the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, and court cases which have turned its meaning upside down.
For a shorter introduction, read this article from Mike Maharrey, “The General Welfare Clause is not about writing checks.”
“Federal law always trumps state law.”
As Brion McClanahan noted in a 2010 article, “this opinion is held by a majority of constitutional law “scholars,” but they are far from correct.”
The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”
The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
Brion summed it up with this gem:
When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”
All of these myths have been used by supporters of endless federal power to enact all kinds of federal programs. While we know that our responses to these myths will never result in federal politicians or judges giving up or overturning federal programs, we believe you’ll find them interesting and educational.
More importantly, we should recognize, as the Founders did, that Constitutions don’t enforce themselves. We cannot rely on the federal government to limit its own power. That’s why states and individuals need to step up and get the job done.