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William Murchison / March 31, 2009

Alas, The Constitution

The mind boggles, and then again, maybe it doesn’t, having become what you might call boggle-proof over repeated assertions of federal government power to do this and do that, whatever you please, don’t bother asking.

The newest proof – anyway as of Monday – was the Obama administration’s plan to fix General Motors and Chrysler through bankruptcy filings and the Lord only knows what else.

At such a spectacle there wasn’t room to wonder after the administration told the chairman of General Motors, Rick Wagoner, to scram, get lost.

Is there anything at all, we might ask at this dramatic passage in U.S. history, that the U.S. government doesn’t feel fully empowered to do? Nothing suggests itself, which is a big part of the tragedy of our times.

I invite the reader to gaze higher than mere Events usually cause us to gaze, and to look at what is going on. Every supposed constitutional limit one can think of is falling without remark, far less protest. The American people seem to have made up their minds, presumably without bothering to exercise them, to the effect that the Constitution doesn’t divide or limit power the way we were once taught.

That old piece of parchment carefully delineated powers. The federal government, by advance arrangement, could do specific things. Others it couldn’t do. A role remained for the states, stipulated in the 10th amendment. Good taste and a healthy measure of modesty on the part of the executive and legislative branches were supposed to restrain the illegitimate exercise of powers illegitimately assumed.

Of course it never worked perfectly. Thomas Jefferson, anti-centralist as he was, stretched the meaning of the treaty power so that he might purchase Louisiana. It was a good lick, in many ways, but it showed that the Constitution, as a brake on the exercise of power, had its limits. Over the decades, the Constitution barely changed, save through the accretion of amendments like the one authorizing an income tax. What changed was the disposition of the Constitution’s interpreters to decide that A Good Idea just had to be constitutional. Vigilance relaxed. Congress and the President got in the habit of doing pretty much what they wanted. Our luck was that much of the time they chose not to do the outrageous.

Like kick out a corporation executive? One could say that if Washington, D.C., was bankrolling GM, it could sure tell GM what to do. Some might recall under the circumstances the famous photo of two National Guardsmen, in 1944, carrying out of his Chicago office the obstreperous chairman of Montgomery Ward, Sewell Avery, who had refused a Roosevelt administration edict to allow unionization.

Well, it was wartime, you know. Earlier, The New Deal had started telling farmers what they could plant – and couldn’t plant. It was an emergency, you know. A problem with emergencies, like the present one, is that the habits of command and obedience become institutionalized. Freedom retreats and only occasionally dares stick its nose back inside the door. Not so government. Government never retreats. The more we ask of it, the more it gives. The more it gives, the more latitude for action it demands – the more oversight of our affairs.

Mr. Justice James W. Reynolds’ dire and dour formulation from New Deal days – “the Constitution is gone” – could ring in our ears like a funeral bell. Supposing that anyone remembered McReynolds and the now-quaint intention that in a free society measures to limit government were of the essence.

Alas, Sewell Avery. Alas, Rick Wagoner. Alas, Mr. Madison, Mr. Adams, Mr. Jefferson – the whole powdered-wig contingent that worked to pen government, that bumptious contrivance, behind a wall of carefully specified duties and powers, in the interest of keeping freedom free. I somehow don’t imagine that at the end of the present emergency we are going to find freedom nearly as free as it was just weeks – - count ‘em, weeks – ago.



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