Our Greatest Failures, Part 2: Paternalistic Laws

     Liberty’s Torch readers might be wondering about the order of the items I listed as “our greatest failures” in the original piece. There’s no specific order to them; at least, there wasn’t when I first composed the list. Even so, I find the subject of federal “for your own good” laws to be a particularly good one with which to start the series. Perhaps by the end of this piece you’ll agree with me.

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     The Constitution of the United States wasn’t just a “What is so rare as a day in June” emission from a group of poets with time to kill and parchment to fill. It was written to serve certain purposes, and to that end it was scrutinized so closely that no other political document in the history of Man can compare to it. The primary purpose was to create a federal government limited to specific powers and activities. The secondary purpose was to deny certain powers and activities to the state governments.

     If you reject that premise, you might as well stop reading right here, because the rest of this will simply fly past you.

     At the time of the Founding, the Founders had absolutely no intention of giving internal police powers to the federal government. The seventeen enumerated powers listed in Article I, Section 8 certainly don’t mention an internal policing role. For many decades after the Constitution’s ratification, virtually no exercise of a federal police power was attempted. The few gestures toward it, such as the Fugitive Slave Acts, were widely denounced, poorly enforced, and violated more frequently than they were respected.

     Yet the Constitution attributed police powers by implication to the state governments: by the incorporation of the “common law,” and by the Constitution’s refusal to specify the powers of a state government. As Madison wrote, the Founders intended that the powers of the federal government would be “few and defined,” while those of the state government, with the exception of the specific prohibitions in the Constitution, would remain “numerous and indefinite:” i.e., defined (if at all) by state constitutions.

     As the state governments had already been exercising police powers, including the power to legislate on matters of “health, safety, and morals,” the Constitution did not touch them. But by failing to enumerate an equivalent power in Article I, Section 8, it prohibited such a power to the federal government.

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     The first of the major turning points came with the Eighteenth Amendment:

     After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

     The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

     This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

     For the first time, an explicit Constitutional provision had given the federal government the power to enforce a law “for your own good.” This is one of the most significant and least often discussed aspects of Constitutional law. The Amendment implied that no such power existed prior to its ratification, for if it had existed previously, the Amendment would not have been necessary for Congress to pass the Volstead Act. It thereby emphasized the enumerated-powers / limited-government aspect of American federalism.

     However, the Progressives of the day (and many less savory allies) argued that with the Eighteenth Amendment, Congress had been recognized as having indefinite police powers, just like the states. The Harrison Narcotics Tax Act, which had originally been rationalized as a “revenue measure,” suddenly became a provision legitimizing any variety of federal law on all imaginable drugs. The federal politicians of that era, notably the proto-fascist Wilson Administration, were hungry for more power and stature, and they followed that argument gleefully. Nor has it been seriously addressed since the conclusion of the World Wars.

     The genie was out of the bottle.

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     The crux of all legal arguments over federal paternalism is whether the federal government is Constitutionally allowed to exercise internal police powers. Citations of the “general welfare” clause by those on the “pro” side of the debate routinely omit the following four words: “of the United States,” which emphasized that the “welfare” involved was that of the United States as a sovereign nation among the other nations of the world. Besides, if the “general welfare” clause empowers Congress to do anything it pleases, why did the Founders enumerate Congress’s specific powers in the first place?

     Therefore, the correction of the massive exertion of federal police power “for your own good” requires that federal police power itself be nullified, whether by a properly strict interpretation of the Constitution or by a fresh Amendment. The consequences would be far-reaching; among other things, ObamaCare would dissolve like a bad dream. But this is merely to illustrate the perniciousness of the notion of an implied power of the federal government. Once such a conception is permitted, it will respect no boundaries, whether of Constitutional law or of good sense.

     ADDENDUM: Note that the Twenty-First Amendment, which repealed the Eighteenth Amendment and nullified the Volstead Act, did not explicitly deprive the federal government of the police powers the Eighteenth Amendment implied to it. Progressives and other power-mongers have made this argument in support of the War on Drugs.