My 1981 textbook began by discussing a hypothetical "Constitutional Convention of 1987." I picked the then future year 1987 because it would be the 200th anniversary of the convention that wrote our present Constitution.
Students were asked to imagine that they might be delegates to this convention and to think about what they would need to know to do a good job. The chapter also asked whether a new convention would be a good idea, discussing possible advantages and disadvantages of writing a new constitution.
The advantages took one paragraph. The disadvantages took nine paragraphs!
The chapter concluded by noting that "society today is vastly more complex than in 1787." Therefore "it might be safer to continue our historical, piecemeal approach to constitutional change: one amendment, one judicial reinterpretation, at a time."
The chapter didn't mention a third way to improve the Constitution. We could rearrange our understanding of the relationships between its basic elements and reconsider which are most important. We could view the document within a new frame of reference. Its words remaining unchanged, changes in the angle from which we look at it could make it radically different.
One useful way to change our perspective on the Constitution would be to get rid of the idea that it limits the goals that the federal government can pursue.
The Constitution does four things.
First, it establishes our basic federal institutions — Congress, the Supreme Court, and the presidency. Second, it states goals which the federal government can pursue. Third, it places limits on how that government can act in pursuit of its goals. And fourth, it limits how state governments can act.
These four constitutional elements are not equally important. A constitution's main function is to limit how government can act. Limiting the goals government can pursue need not be part of a constitution, especially one intended for the long haul. The 1787 delegates couldn't possibly have imagined all goals government more than 200 years later could legitimately pursue.
Two examples: The Constitution authorizes Congress to establish an army and a navy, but not an air force. It doesn't authorize regulation of the frequencies used by radio and TV stations, which was absolutely necessary — to prevent transmitters from interfering with each other — when these twentieth century technologies were invented.
Past courts had to determine the legitimacy of government goals due to federalism.
The Constitution distinguishes goals it authorizes the federal government to pursue from those that can be pursued by state governments. Jurisdictional conflicts between the central government and state governments required courts to determine whether federal pursuit of certain goals impinged on the rights of state governments.
But for many decades the Supreme Court has permitted the federal government to legislate in arenas previously considered a state monopoly. During the Nixon-era oil shortage, we needed to conserve gasoline.
Slower cars get better mileage, so a national speed limit could help. But regulating highways was considered a state function, not federal, so Congress was deemed unable to enact speed limits. Unfortunately, state governments weren't inclined to enact lower speed limits.
Instead of enacting a speed limit law, Congress used its power of the purse. It decreed that states whose legislatures didn't enact a 55 mile per hour speed limit would lose substantial grants in aid from the National Highway Trust Fund — financed by federal gasoline taxes. The states grumbled, but fell into line.
Except for a conceptually incoherent decision about Medicaid expansion, the Supreme Court has let the federal government use its purse power to pursue goals apparently not authorized by the Constitution. To continue distinguishing between constitutional and unconstitutional federal goals therefore no longer serves any useful purpose.
And it deflects attention from the merits of particular legislation.
Federalism was a compromise necessary to secure ratification of the 1787 Constitution, not an inherently desirable way of organizing a political system. Since the Constitution's enumerated goals no longer limit what that government can do, they should henceforth be regarded as examples rather than a complete list. Courts should uphold all federal laws that don't violate the strict limits on government actions laid down by the Constitution, no matter what goal those laws pursue.
This change would not destroy federalism, but simply recognize that the federal government already legislates for the whole country whenever it chooses to do so..
Eliminating the concept of illegitimate goals from constitutional law would simplify it and move us in the right direction. My next column will explain how a new frame of reference could help us understand the Constitution so differently as to make it a completely new, and better, document, without changing any of its words.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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