The Mirage of Enumerated Powers

[Valin]

Claremont Review of Books:

Hadley Arkes
6/6/11

We mark this tenth anniversary of the Claremont Review of Books at the best of moments, when the country is open, as it has rarely been, to the lessons that this journal has sought to teach. As some of our more prescient friends grasped at the time, the election of Barack Obama, along with a Congress firmly controlled by his party, could offer a vast mind-clearing experience. The country was about to get a hefty dose of what the unalloyed, undiluted Left would serve up. And so, in the run-up to the midterm election, we saw in the country a remarkable, rising—and utterly justified—anger over the ramming through of Obamacare. The recoil has been twice-triggered, from the substance and the process—from the national takeover of medical care, and from the process that begot it, the tawdry way it was done. All of this followed the partial nationalization of the auto industry, with some of us still wondering on just what ground of law the president of the United States was able to cashier the president of General Motors. I don't recall a time when there has been in the country such intense, widespread interest in looking again to the Constitution in searching for the limits to the reach of the national government; a government that was supposed to be "limited" in its powers, directed to a set of more limited, essential ends.

There is a serious danger, though, that some of our friends may be drawn away, with their wits and energies dissipated, as they try to find again that list of "enumerated" functions or powers that offers a guide to the limiting of the government. My late professor Morton Grodzins at the University of Chicago, one of the great defenders of federalism, argued years ago that there was no organizing principle that explained how functions or powers were assigned in this system, local or federal. He argued that, if the functions of the government were assigned by some measure of "naturalness" or fit, the local governments could be left with nothing to do. And even Justice Harry Blackmun, in one of his rare moments of lucidity, recognized in Garcia v. San Antonio Metropolitan Transit Authority (1985) that there was no such clear organizing principle that could explain, for example, why operating a municipal airport and disposing of solid waste were functions of local government, while regulating intrastate sales of natural gas, or in-house domestic services for the aged and handicapped, should be functions of the federal government. I would caution that such a list of enumerated powers is a mirage, which will keep dissolving the closer we get to it.

Rule of Law

I would instead counsel our earnest friends in the Tea Party movement that those limits on government, whether understood by Plato or the American Founders, were most critically moral limits. They depend on our capacity to reason over the extensions of power that were justified or unjustified, legitimate or illegitimate. They depend, then, on the canons of moral reasoning, canons that are used every day by ordinary folk. And so if on the way home one day I find the fire department closing off access to the street in order to fight a fire, my liberty has been curtailed, but I don't think for a moment that my rights, whether natural or constitutional, have been abridged. My liberty to walk down the street has been restricted with evident justification, for the purpose of protecting the unwary from venturing into hazards.

(Snip)