by Michael Cummins

In one of his final acts as president, James Madison did something almost unthinkable by modern standards: he vetoed a bill solely on Constitutional grounds.

President Madison agreed that it made sense to use federal funds for the construction or upgrade of vital roadways and canals within the states. But the Internal Improvements bill of 1817 was contradicted by a higher law, namely the absence of a concomitant enumerated power in Article I, Section 8 of the Constitution.

Being among the Framers of our legal system, Madison understood that when two laws clash, the higher one wins out. True to his oath of office, he refused to challenge the Constitution by endorsing an invalid inferior statute.

Seeing this specific issue coming to the fore, Madison had a couple years earlier let Congress know exactly how everyone’s spending wishes could come to pass. He encouraged Congress to fire up the process for amending the Constitution. Given the substantial support that the notion of federal spending on infrastructure enjoyed, it seems likely that the states would have been willing to delegate such power to the federal government, if asked. Congress instead tried the easy route, in the vain hope that Madison was bluffing.

In the almost two hundred years since Madison’s veto, the federal government’s spending authority has still not been officially augmented. But that has not prevented our national leaders from establishing a fantastic variety of new spending programs. Politicians of every supposed political stripe (including many who ostensibly repudiate “big government”) have come to accept federal omnipotence as a given.

Those who still give lip service to the Constitution as law (as opposed to some sort of “guiding document”) justify spending as they please through spontaneous discovery of the Constitution’s “living, breathing” nature, a catch-all interpretation of the general Welfare clause, or the favoring of novel semantic construction over plain-English intent. They have appointed a complicit judiciary to provide cover.

In its end-run around federal limitations, the establishment was skillfully guided by America’s ‘progressive’ intelligentsia. Leftist academics, specifically, provided the philosophical undergirding of expansionist policy.

Of course, systematic misinterpretation of the Constitution was not the only possible route to a dominant federal government. Instead of pushing shortcuts, principled progressives could have advocated that federal prerogative to new powers be secured by Constitutional amendment prior to legislative actualization, in sync with Madison’s exhortation to Congress.

Over time, the states might well have become willing to formally turn over all sorts of responsibilities to the federal government. With every war it won, and with every year it persisted as other governments around the world fell to revolution, the US government appeared to be more competent and stable, worthy of taking on new roles. Had the left pursued a measured, truly Constitutional path to federal expansion, we might today be like the countries of Western Europe, with a centrally-managed welfare state that is completely legal.

But, on the face of it, we cannot expect progressives to be overly-sensitive to the charge that, because they declined to play by the rules, their whole racket is illegitimate. After all, they got their way, and they and their fellow spendthrifts are more or less in charge at every level of government. Why should they regret having bypassed the burdensome formality of the amendment process?

There is actually a very good reason. Given its history, how seriously can the modern left expect to be taken when, for example, it decries DEA raids on California medical marijuana clinics, on the grounds that the clinics comport with state law? Appeal to federalism is, by right of equity, no longer available to the left. As a matter of fact, every time Congress tries to reverse state measures on assisted suicide, or to regulate marriage, the left itself must share the blame.

Through their demonstrated willingness to cut corners, progressives have also hobbled their advocacy for the preservation of the civil liberties enshrined in the Bill of Rights. The futile cries from the left that the Bush Administration “shredded the Constitution” through its eavesdropping and detention policies were, on one level, quite galling.

Having worked so diligently to debase the structure set up by the opening articles of the Constitution, progressives hardly have purchase to claim offense when that document’s first ten amendments are disrespected. The Constitution is not an à la carte menu.

The mainstream right has, of course, had its own problems with consistent, objective respect for the rule of law. For example, those whose evaluation of War on Terror policies begins and ends with “Bush kept us safe” should consider that, but for lingering respect for the Second Amendment, private gun ownership would likely be a thing of the past. But the right’s misdeeds are beyond the specific scope of this article.

Even if today’s progressives come to fully comprehend the destructiveness of past political mistakes, it is far too late for them to set things right. They are by now completely invested in the legislative fraud through which the institutions of unlimited federal government were created and nurtured.

But the very fact that these institutions stand on such shaky legal ground could be the germ of their eventual demise. If and when we start actually obeying the rules, then higher Constitutional law will automatically trump the statutory law upon which the federal behemoth depends. Fiscal liberalism will be immediately out of business. So we should in this sense be grateful for the left’s procedural delinquency.

Once upon a time, progressives had an opportunity to do their thing, by the book. But they blew their chance.

Michael Cummins is the Clark County, Washington, coordinator for Campaign for Liberty. He is also an operations specialist in the telecommunications industry and a part-time musician.

Copyright © 2009 Campaign for Liberty, published with permission.

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