The Three Biggest Mistakes of the US Constitution

Shiam Kannan | @shiam_kannan

Many regard the United States Constitution as one of the greatest documents in the history of political thought. Indeed, it has a lot going for it. Not least of which the brilliant separation of powers, checks and balances, the Bill of Rights, and the insurance of popular sovereignty. Continuing to this day, they have rendered America the oldest existing Republic in the world.

However, let’s look at the Constitution from another lens: that of limited government. One of the primary goals of the Founding Fathers was to establish a document that would grant the federal government certain powers. It would also preclude itself from interfering in other areas of governance. Those were to be left to the states or to the people, as enshrined in the 10th Amendment. In this regard, the Constitution has been nothing short of a failure. Three fatal flaws have rendered it impotent in the face of an ever-expanding federal government.

The Tragedy of the Commerce Clause

The first and oldest of these three flaws is the Necessary and Proper Clause. Present in Article 1, Section 8, of the US Constitution, it states a specific power. This being to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.” At first glance, this text seems innocuous. One may think, this clause only gives Congress the power to make laws in the pursuit of its enumerated powers, right? It surely can’t be a blank check for federal power!

Truly, that was the intent of the framers. They limited the federal government to its enumerated powers while giving it sufficient leeway to carry out those powers. But fast-forward 240 years: the Necessary and Proper Clause has been weaponized by Congress. It has tightened the grip of the federal government over state issues that the framers couldn’t have envisioned. For the most part, Congress’s expanded powers have come from using the Necessary and Proper Clause to widen the scope of the Commerce Clause. The Commerce Clause grants Congress the power to “regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The abuse of congressional power by this pair of clauses can be traced back to the New Deal.

FDR Worsens the Problem

FDR changed the course of US Constitutional History by permanently expanding the powers of the federal government through his “alphabet soup” of programs. The Supreme Court justified those programs under these clauses. After Roosevelt threatened his “court-packing” scheme when the Supreme Court struck down some of his New Deal programs, the court had a sudden shift of opinion. From then on, it would uphold his egregious expansions of federal authority.

In the US v. Darby Lumber Co. (1941), the Court upheld the Fair Labor Standards Act. It gave the federal government power over wage and labor standards, such as the minimum wage and overtime pay. In Wickard v. Filburn (1942), the Court upheld quotas in the production of wheat, justifying them under the Commerce Clause as an acceptable application of Congress’s powers. And in the US v. Wrightwood Dairy Co. (1942), the Court upheld federal controls on the price of milk. It expanded the Commerce Clause to cover intrastate commercial activities as well. Unfortunately, these examples are only a few of a long list of cases that would solidify the Federal Government’s unconstitutional intrusions into matters that should solely remain under the purview of the states. They used the Commerce and Necessary and Proper Clauses to rationalize their unwarranted power grabs.

The 16th Amendment Joins the Party

The second fatal flaw in the US Constitution is one that has allowed the Federal Government the funds necessary for it to grow into the behemoth it is today: the 16th Amendment. This amendment, for the first time in American history, gave Congress the Constitutional authority to levy an income tax. Prior to its passage, the federal government was limited to its most basic functions. It simply lacked the funds necessary to expand. It financed itself through indirect taxes such as excise taxes and tariffs. This allowed the government some revenue but allowed all Americans to keep 100% of their paychecks. In the first half of the 19th century, government spending remained at approximately 2% of GDP, temporarily spiking in the midst of the Civil War, but returning to previous levels afterward. In contrast, today federal spending constitutes a whopping 24% of GDP. We have almost twice the number of federal departments today as we did at the start of the 20th century. This explosion of federal spending would clearly be impossible if not for the 16th Amendment and the new enormous revenue source it created for the federal government.

Not only has the federal government’s size grown since the adoption of the 16th Amendment; but so has its power. The creation of the income tax has empowered the federal government to erode state sovereignty as the size of federal grants to states has increased over time, from $13 billion in 1940 to over $500 billion today. As more and more of the dollars spent by state governments go through the federal government first, the federal government grows its influence in state matters and gains the power to bend the will of the states to its whim using the power of the purse. Thus, the federal government’s usurpation of the power to tax incomes has shifted the balance of power towards itself and away from the states, a direct affront to the principle of federalism embodied in the 10th Amendment of the US Constitution.

The Nail in the Constitutional Coffin

The third and final fatal flaw present in the Constitution is a mistake for a similar reason as the 16th Amendment. It further reinforced the shift of power from the states to the federal government that continues to this day. This flaw is the 17th Amendment, which repealed Article 1, Section 3’s process of state legislatures electing Senators. It instead mandated that Senators be elected by popular vote. The 17th Amendment dismantled the entire system the Framers intended for the Senate; to serve as a representative body for state interests. This purpose is evident in the fact that each state receives equal representation in the Senate. It is equally evident in the fact that the idea to elect Senators by popular vote was overwhelmingly rejected by a vote of 10-1. The Senate was the most important means by which states could represent their own interests in Congress. It was perhaps the most crucial mechanism for states to resist federal encroachment into their reserved powers.

When state legislatures elected Senators, state governments had a voice in the Senate just as the people had a voice in the House of Representatives. State legislatures could ensure that the Senators they chose would protect state interests from federal overreach, and would safeguard state sovereignty on issues such as health, safety, and welfare policy. They prevented the federal government from getting involved in these aspects. Once the states were deprived of this way to protect their interests, the federal government began intruding. It violated its limitations. Further, it flew against the whims of state governments, who were unable to stop the federal expansion of power. In this regard, the 17th Amendment merely continued a trend. Starting in the early 1900s, the expansion would not slow down until the Rehnquist Court.

What is the Practical Solution?

If only we could say that undoing the damage of big government would merely take a repeal of these portions of the Constitution. Unfortunately, it isn’t that simple. It is very likely that despite the existence of the 16th Amendment, the Supreme Court would uphold an income tax as Constitutional. It would take an amendment prohibiting an income tax to truly repeal the effect of the 16th Amendment. We would also need to work out an alternative revenue source in the absence of the income tax. Maybe a VAT or national sales tax. Finally, most difficulty, we would have to determine what federal programs would go on the chopping block. Abolishing the income tax without massive spending cuts to compensate would be egregiously fiscally irresponsible.

Despite the complexity of any solutions to this problem, the problem of big government most certainly exists. Soaring deficits and the national debt force us to confront this problem. There is no doubt that this problem wouldn’t exist were it not for those three mistakes in the US Constitution.

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