My Washington Examiner column this morning concludes by briefly addressing an odd objection I hear on occasion. Some law professor defenders of the individual mandate such as Laurence Tribe, Charles Fried, and Walter Dellinger have complained that my Clause Clause objections are not really founded on “federalism,” but are actually founded on “liberty.” But liberty, they then say, is protected by the Due Process Clause in the Fifth Amendment of the Bill of Rights, which is the theory I should be advancing.
Of course, they well know that today’s Due Process Clause doctrine protects few liberties. But they also curiously omit what I am sure they also know: that before there was any Bill of Rights, defenders of the Constitution claimed that the enumeration of power in Article I would protect the liberties of the people, making a bill of rights unnecessary. Here is future Supreme Court Justice James Wilson from his State Yard speech (which I edit to hone in on the relevant point):
[I]n delegating federal powers . . . the congressional authority is to be collected . . . from the positive grant expressed in the instrument of union. . . . [E]verything which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed Constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested wither by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom?
Clearly, Wilson did not anticipate the “substantial effects doctrine” giving Congress the power to reach any economic activity — like newspaper publishing — that has a substantial effect on interstate commerce. But the point is that the enumeration of powers in the Constitution was considered a protection of liberty. That is only true, however, if these powers have some internal limits that function independently from the short list of liberty rights protected in the Bill of Rights.
Wilson was even clearer on this point in the Philadelphia ratification convention:
But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.
Here is future Supreme Court Justice James Iredell in the North Carolina ratification convention:
I thought the objection against the want of a bill of rights had been obviated unanswerably. It appears to me most extraordinary. Shall we give up any thing but what is positively granted by that instrument? It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it. . . . I say, the future Congress can have no right to exercise any power but what is contained in that paper. Negative words, in my opinion, could make the matter no plainer than it was before. The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable are not alienated. They still remain with the great body of the people. If any right be given up that ought not to be, let it be shown.
Or, as Alexander Hamilton wrote in Federalist 84: “[T]he proposed Constitution, if adopted, will be the bill of rights of the Union.”
Iredell, Wilson, and Hamilton’s argument would make no sense unless (1) the enumerated powers themselves contain limits, and (2) these limits are protections of liberty.
I can put the matter another way. For 2 years there was no bill of rights, and no Due Process Clause. Therefore, the position of Tribe et al is that, for 2 years, Congress had unlimited powers. I should have thought it obvious that there are not one but two means of constitutionally protecting liberty: (1) enumerate and limit grants of power and (2) protect rights.
Supporters of the mandate wish to restrict the protection of liberty to the second of these means. So be it. Perhaps they are claiming that, given Supreme Court precedents, the first no longer provides any enforceable limits on Congressional power. Law professors widely believed this until 1995 when Lopez limited Congress to regulating only that intrastate activity that was “economic” in nature, a proposition it affirmed in Morrison and Raich. Now rather than regulate or prohibit economic activity, for the first time in American history Congress claims the power to regulate inactivity — that is to mandate that persons engage in economic activity. This unprecedented claim of power has been authorized neither by the text of the Commerce Clause, nor by Supreme Court doctrine. Here is how my Examiner column ends:
When the Constitution was proposed, its supporters denied that a bill of rights was necessary to protect the liberties of the people. They contended that the enumeration of powers in the Constitution was itself a bill of rights that would protect the liberties of the people.
Due to expansive judicial interpretations of the powers of Congress, however, we are a very long way from the scheme the founders enacted.
Today, only a categorical principle will preserve the protection of liberty afforded by the scheme of limited and enumerated federal power: Congress may not use its “power to regulate commerce . . . among the several states” to conscript the American people to do business with private companies.
There is simply no contradiction in asserting the enumeration of powers in the Constitution as a means of protecting the liberties retained by the people (along with the reserved powers of the states). According to the most prominent defenders of the Constitution, this is how it was supposed to work. And the Supreme Court has never said otherwise.