SETTING FEDERAL SPENDING PRIORITIES.

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Original Source: TESTIMONY

Statement of Roger Pilon Director, Center for Constitutional Studies The Cato Institute

Committee on Senate Homeland Security and Governmental Affairs Subcommittee on Federal Financial Management, Government Information, and International Security

October 25, 2005

Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am vice president for legal affairs at the Cato Institute and director of Cato`s Center for Constitutional Studies.1 I want to thank you, Mr. Chairman, for inviting me to testify today on ``Guns and Butter: Setting Priorities in Federal Spending in the Context of Natural Disasters, Deficits, and War``-the purpose of the hearing being, as your letter of invitation states, ``to focus on the limits and role of our federal government as outlined in the Constitution.``

I can well understand your concern to focus on that issue, Mr. Chairman. In Federalist 45, James Madison, the principal author of the Constitution, spoke to a skeptical nation, worried that the document the Constitutional Convention had just drafted gave the central government too much power. Be assured, he said, the powers of the new government were, and I quote, ``few and defined.`` How things have changed. Yet in its 218 years, the Constitution itself has changed very little. The questions before us, then, are (1) under that Constitution, how did we go from limited to essentially unlimited government, (2) what are the implications, and (3) what should be done about it?

A closely related question is whether Madison understood and correctly reported on the document he`d just drafted, or whether modern interpretations of the Constitution, which have allowed our modern Leviathan to arise, are correct. Let me say here that Madison was right; the modern interpretations are wrong. As a corollary, most of what the federal government is doing today is unconstitutional because done without constitutional authority. That contention will doubtless surprise many, but there you have it. I mean to speak plainly in this testimony and call things by their proper name.

But before I defend that contention by addressing those questions, let me note that the nominal subject of these hearings- ``setting priorities in federal spending``-concerns mainly a matter of policy, not law. Unless some law otherwise addresses it, that is, how Congress prioritizes its spending is its and the people`s business-a political matter. By contrast, the subtext of these hearings, which I gather is the subcommittee`s principal concern, is ``the limits and role of our federal government as outlined in the Constitution,`` and that is mainly a legal question. I distinguish those questions, let me be clear, for a very important reason. It is because we live under a Constitution that establishes the rules for legitimacy. Thus, in the case at hand, Congress may have pressing policy reasons for prioritizing spending in a given way, but such reasons are irrelevant to the question of whether that spending is constitutional.

Constitutional Legitimacy

Because that distinction and the underlying issue of legitimacy are so central to these hearings, they warrant further elaboration at the outset. In brief, our Constitution serves four main functions: to authorize, institute, empower, and limit the federal government. Ratification accomplished those ends, lending political and legal legitimacy to institutions and powers that purported by and large to be morally legitimate because grounded in reason. Taken together, the Preamble, the first sentence of Article I, the inherent structure of the document, and especially the Tenth Amendment indicate that ours is a government of delegated, enumerated, and thus limited powers. The Constitution`s theory of legitimacy is thus simple and straightforward: To be legitimate, a power must first have been delegated by the people, as evidenced by its enumeration in the Constitution. That is the doctrine of enumerated powers, the centerpiece of the Constitution. For the Framers, it was the main restraint against overweening government. In fact, the Bill of Rights, which we think of today as the main restraint, was an afterthought, added two years later for extra precaution.

Once that fundamental principle is grasped, a second follows: Federal powers can be expanded only by constitutional amendment, not by transient electoral or congressional majorities. Over the years, however, few such amendments have been added. In the main, therefore, Article I, section 8 enumerates the 18 basic powers of Congress-the power to tax, the power to borrow, the power to regulate commerce with foreign nations and among the states, and so forth, concluding with the power to enact such laws as may be necessary and proper for executing the government`s other enumerated powers. It is a short list, the idea being, as the Tenth Amendment makes explicit and the Federalist explains, that most power is to remain with the states-or with the people, never having been delegated to either level of government.

In fact, given the paucity and character of the federal government`s enumerated powers, it is plain that the Framers meant for most of life to be lived in the private sector-beyond the reach of politics, yet under the rule of law-with governments at all levels doing only what they have been authorized to do. Far from authorizing the ubiquitous government planning and programs we have today, the Constitution allows only limited government, dedicated primarily to securing the conditions of liberty that enable people to plan and live their own lives. I turn, then, to the first of the questions set forth above: How did we move from a Constitution that limited government to one that is read today to authorize effectively unlimited government?

From Limited to Unlimited Government

The great constitutional change took place in 1937 and 1938, during the New Deal, all without benefit of constitutional amendment; but the seeds for that change had been sown well before that, during the Progressive Era.3 Before examining that transition, however, I want to lay a proper foundation by sketching briefly how earlier generations had largely resisted the inevitable pressures to expand government. It is an inspiring story, told best, I have found, in a thin volume written in 1932 by Professor Charles Warren of the Harvard Law School. Aptly titled, Congress as Santa Claus: or National Donations and the General Welfare Clause of the Constitution, this little book documents our slow slide from liberty and limited government to the welfare state-and that was 1932! In truth, however, Warren`s despair over that slide notwithstanding, the book is a wonderful account of just how long we lived under the original design, for the most part, before things started to fall apart during the Progressive Era. And so I will share with the subcommittee just a few snippets and themes from the book, along with material from other sources, to convey something of a sense of how things have changed-not only in the law but, more important, in the culture, in our attitude toward the law.

When Thomas Jefferson wrote that it was the natural...

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