The Constitution

I've been puzzling over this problem lately, and if I had any desire to be a constitutional scholar, I'd write a book about it (better yet, 5 or 6 law review articles that could then be converted into chapters).

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BACKGROUND:

Proposition 1: As originally designed, the Constitution established that the federal government had enumerated powers.

It was not the case that the federal government had unlimited power under the Commerce Clause and the Necessary and Proper Clause. This is easily seen by the fact that Article II took the trouble to spell out the fact that Congress was empowered to punish counterfeiting, establish post offices, establish a patent and copyright system, coin money, set up bankruptcy law, etc. If Congress already had unbounded power to do anything it pleased (based on some hypothetical and tenuous connection to an aggregate effect on the economy), the rest of Article II would have been pointless.

Thus, when a Bill of Rights was proposed, many Federalists thought it completely unnecessary. As Alexander Hamilton wrote in Federalist 84:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Or, as Theodore Sedgwick of Massachusetts famously declared in the debate over the Bill of Rights, the Constitution might as well specify "that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."

That's why they came up with the 9th Amendment: To make clear that the Bill of Rights wasn't meant to be exclusive and that the government was still one of enumerated powers. You can particularly see this in Madison's original draft of what would become the 9th Amendment:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Proposition 2: The notion of enumerated powers was not intended to apply to state governments. Not from the U.S. Constitution, anyway. This is fairly simple: The Constitution didn't enumerate any powers of state governments, and the 10th Amendment then made clear that state governments (and the people) retained all powers not explicitly given to the federal government.

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CURRENT SITUATION:

But here we are today. The notion that the federal government is limited to enumerated powers seems a quaint relic of the past. Liberals will call you an extremist if you believe that the federal government has any limit whatsoever on its powers (except for claims couched in civil rights language). And on the flip side, liberals aren't the only ones who maintain a fundamentally anti-Constitutional theory. Many conservatives believe that unless something is literally specified in the Bill of Rights, there is no such right.

Why has this happened? The most obvious reasons for liberal anti-Constitutionalism are Roosevelt's court-packing plan, the Depression, the New Deal, etc. And the obvious reason for conservative anti-Constitutionalism is the excess of the Warren and Burger Courts.

But Roosevelt and Warren are long since dead. Why is it still the case today that (a) most judges are unwilling to hold that Congress's powers are limited in any way to enumerated powers, and (b) many judges and theorists are still drawn to the notion that a constitutional right must be specifically protected (or else they appear to be uneasy and defensive over a constitutional right that is not specifically listed)?

Here's my grand theory: The incorporation of the Bill of Rights against the states has played a subconscious role here.

That's a bizarre theory, isn't it? Why would the application of the Bill of Rights to the states be relevant?

First, once you apply the Bill of Rights to the states, it becomes quite difficult to remember the underlying principle that the Bill of Rights is unnecessary, i.e., because the government's powers are already strictly enumerated. That principle simply isn't true as to the states. In theory, a federal court could still maintain a distinction in its reasoning: When faced with a federal regulation of the press, the court could say (as did Hamilton), "The federal government isn't empowered to regulate the press in the first place," and then when faced with a state regulation of the press, the court could say, "The state government has general police power, of course, but this goes past the limit set by the First Amendment."

But this doesn't happen. It's much easier just to fall into the habit of using the same legal reasoning in both instances. And thus, the principle of federal enumerated powers disappears from such cases.

Second, the conservative resistance to a broad interpretation of the Bill of Rights comes from an instinctive realization that the Bill of Rights shouldn't mean the same thing when applied to state governments. That is, with the federal government -- as originally envisioned -- the Bill of Rights combined with enumerated powers like two sides of the same coin. On one side, the federal government's powers were enumerated, while on the other side, the Bill of Rights made clear (esp. with the 9th Amendment) that there were rights as to all sorts of activities over which the federal government had NOT been given power.

But this concept doesn't apply to the states. When it comes to the states, there are no enumerated powers in the first place; indeed, the 10th Amendment stands for the opposite principle. It makes little sense to interpret the Bill of Rights as if the underlying principle were one of suspicion towards state government power. Thus, there's the urge to circumscribe the Bill of Rights -- which wasn't written with the states in mind -- so that state governments have more of their traditional freedom to experiment in the way that they legislate over various subjects.

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To be sure, all of this is somewhat abstract, and has little to do with the actual (i.e., political) reasons that the Supreme Court has evolved as it has over the past century. But detachment from reality is rarely held against an interesting constitutional theory.