As Mill observed in On Liberty, elections do not ensure liberty. Sometimes students from nations ruled by dictators tell me that their people will be free if only they can replace that dictator with a democratically elected government. As Mill pointed out, that was also a common misconception before there were any modern democracries. But we have since observed that majorities—or those who can get elected—will sometimes come to tyrannize others. The Nazis came to power in a democracy, as did segregationists in the U.S. South. If there were free elections in Cuba, it is quite likely that the Communists would be elected. And majorities can tyrannize without any evil intent: in the minds of those who govern, they are merely forcing people to do what is best for themselves. Alexis De Tocqueville described what he feared such a paternalistic democracy would look like in his famous 1835 work, Democracy in America:
The first thing that strikes the observation is an innumerable multitude of men, all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives . . . Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living? . . .
After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd. . . .
Our contemporaries are constantly excited by two conflicting passions: they want to be led, and they wish to remain free. As they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite: they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large who hold the end of his chain.
(To read more of this very important work go to http://xroads.virginia.edu/~HYPER/DETOC/home.html)
How close do you think we are today to the kind of society De Tocqueville describes? Does the government regulate that many of our activities? Are potential innovators tied up in red tape? Are we in danger of becoming a nation of sheep? (If you want to respond, do so by email.)
Constitutions. Most societies have attempted to limit the powers of those who govern through a constitution, a document that purports to (and in some cases, does) constitute the government and detail its powers. There are a handful governments that exercise only limited powers, but do not have a written constitution: the U.K., New Zealand, and Israel are prime examples. Most people feel that written constitutions offer extra protection against abuses of power. A written constitution functions something like an anchor, hopefully keeping the government from drifting too far into overt or paternalistic tyranny. Without a written constitution, people fear that government powers will continuously expand, as each new power seems to be just a tiny addition to the powers already exercised. With a written constitution, when an additional power is claimed, the standard for judging its validity is not how much it adds to what has already been exercised, but how far it deviates from what is specified in the document.
Constitutions are special kinds of compacts because they are intended not just to be agreements among those who sign them, but to bind all generations, past, present, and future. As Friedrich Hayek notes in The Constitution of Liberty (emphasis mine),
. . . a constitution does not involve an absolute limitation of the will of the people but merely a subordination of immediate objectives to long-term ones. In effect this means a limitation of the means available to a temporary majority . . . The agreement to submit to the will of the temporary majority on particular issues is based on the understanding that this majority will abide by the more general principles laid down beforehand by a more comprehensive body. . . . These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live. It is inevitable that, by accepting general principles, they will tie their hands as far a particular issues are concerned. It is because constitutions are this special kind of compact that they are so hard to amend. If temporary majorities could amend constitutions, the constitutions would not be effective in restraining those majorities and could not protect the "general character of the order" under which present and future generations would live.
Look at Article 5 of the U.S. Constitution to find out how that constitution may be amended.
Writing Constitutional Limits on Power. Writing in effective limits on government is much harder than you might think. Those doing so must keep in mind that there are powers that they do not want even democratic governments to exercise, but they also must keep in mind the need to make the government powerful enough so that it can coerce when coercion is warranted. There is a tradeoff: the more they want the government to do for them, the greater the danger that it will come to tyrannize in one manner or another. The problem is how to write a constitution that states the tradeoff they want, giving the government enough power, but no more. And there is a further problem, even if the tradeoff can be stated clearly: how to establish an independent authority to judge whether a particular act by the government actually exceeds the powers granted to it.
There are two theoretical approaches to writing limitations on power into a constitution. The first is to list all those powers that the government may exercise: the "thou shall" approach. The second is to list all those powers that the government may not exercise: the "thou shall not" approach. The first approach was tried in the U.S. under the Articles of Confederation. The Articles gave the confederation only those powers "expressly delegated" in the document. In Federalist 44, Madison argues that such an approach does not give the government sufficient power. Things come up that hadn't been previously considered and the majority would like the government to have the power to do some of them--but, because the authors of the constitution failed to include that power on the list of expressly delegated powers, the government does not have it (barring a difficult and time-consuming amendment). This first approach, the listing of delegated powers, as you might expect, finds favor with libertarians because it is the most protective of individual freedom. Libertarians argue that government should only have very limited powers, and those are known; "things that come up" are merely excuses for extending government power into inappropriate areas.
Madison also points out the dangers in the second approach. The authors of a constitution can never think of all the powers they do not want the government to exercise. For example, the authors of the U.S. Constitution could never have listed tapping telephones or brainwashing dissidents among their "thou shall nots." A list of "thou shall nots" suggests that everything not on the list is permitted--and, with technological advances, there will clearly be things that might be used to tyrannize minorities (and even majorities) that will not be on any list created at a particular point in time.
The wording of the U.S. Constitution attempts a compromise between the two theoretical approaches. That compromise is seen in the original document (before amendments) primarily in Article 1, which lists several "thou shalls," a few "thou shall nots," and a clause called the elastic clause, which gives a little bit of guidance regarding the possible use of powers not on either of the two lists. That clause (the last one of Article 1, section 8) says that Congress has the power 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 in any department or officer thereof." We'll look later in the chapter at how that clause has been interpreted, but it does imply that the government has some powers (implied powers) that are not on either the "thou shall" or the "thou shall not list." Apparently it cannot make laws on every subject that is not forbidden to it; such laws have to be "necessary and proper" to carrying out some power that is specifically granted to Congress. But it can make laws on some subjects not on the "thou shall" list. What determines whether a law is necessary and proper? That is the key question. Does the Constitution set up a government of limited powers (as we are often told it does), or does "necessary and proper" encompass virtually everything that the government wants to do (and is not specifically forbidden from doing). We'll shortly look at some cases in which the Supreme Court wrestled with the meaning of the elastic clause. But, before doing that, it is worth thinking about the general problem of how a nation might establish an independent authority to judge whether a particular act by the government actually exceeds the powers granted to it.
Establishing an Independent Authority to Judge Violations. In the U.S., we are accustomed to turning to the Supreme Court as an independent authority to judge whether an act by the government exceeds the powers granted to it by the U.S. Constitution. This is called the power of judicial review, because the highest judicial agency has the power to review all government acts to determine their constitutionality. Very few nations grant independent judiciaries this power. In most nations, the legislature and/or executive (these are often combined) are charged with determining whether their own proposed acts would violate the constitution. In a democracy, that charge has the virtue of allowing elected representatives of the people to determine constitutionality, rather than allowing a court, which may be out of touch with popular sentiments, to determine it. It, however, has the very severe disadvantage of leaving self-restraint as the only restrain on the government--and that defeats the main purpose of having a constitution.
In some countries, the military has taken upon itself the task of reviewing the constitutionality of government acts. The military, like the judiciary, can be an independent judge of government actions. It has an advantage over the courts in that it has the power to enforce its decisions; courts are dependent upon other government officials accepting court decisions as authoritative. But having the military constrain the government, leaves the nation with the problem of constraining the military--which is particularly hard to do, given the force at its disposal. Furthermore, it may not be so bad that the power of judicial review is dependent upon widespread acceptance of that authority as legitimate. It prevents the power from being grossly abused and requires courts to be careful in determining which cases to hear and how those cases are to be decided. Occasionally (e.g., in the cases involving the "relocation" of Japanese-Americans) this may mean that the court substantially delays hearing a case when they feel conditions are such that a decision against the government might be ignored. But those instances are very rare in U.S. history, and the care that the court has taken over the years is reflected in the almost uniform acceptance of even its most unpoplular decisions by the other branches of the federal government.
Supreme Court Decisions on the Elastic Clause. The Supreme Court first considered the reach of the elastic clause in 1819 in the case of McCulloch v. Maryland. At issue was whether the federal government has the power to establish a national bank. Maryland claimed that the federal government has no such power, as the list of powers granted the government in Article 1, Section 8 do not include the power to establish a bank. The constitution does grant the government the power to "regulate commerce with foreign nations, and among the several states," but it does not say anything about establishing banks or any other businesses or corporations. While having a national bank is convenient, the U.S. economy has functioned without such one; thus a bank is not "absolutely necessary" for the government to regulate the economy. Chief Justice John Marshall, handing down the decision of the court, held that "necessary and proper" does not mean "absolutely necessary." The constitution uses the phrase "absolutely necessary" in Article 1, Section 10, but only "necessary" in Article 1, Section 8. If implied powers don't have to be absolutely necessary, where is the line to be drawn? Is anything that is convenient, necessary? How can a court tell when a power claimed by the government is not necessary and proper? Marshall answered those questions this way (emphasis is mine):
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . . .
Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.
Such an interpretation of the elastic clause suggests that virtually every power that is not specifically forbidden to the government is granted to it, so long as the government can make some kind of argument that the power is "calculated to effect any of the objects enstrusted to the government." The "objects entrusted to the government" include not only regulating interstate commerce, but also defending the nation and laying and collecting taxes to provide for the "general welfare" of the country. Thomas Jefferson, in an opinion to George Washington, argued that the ends entrusted to government are so vague and so numerous that this kind of interpretation of the elastic clause allows the government to claim virtually any power it wishes. Jefferson favored an interpretation that would allow the government only those implied powers absolutely necessary for the government to carry out the listed powers of government. But it was Marshall's interpretation that carried the day.
In the 1940's, the government seized on Marshall's interpretation to defend its actions in setting quotas on the number of acres a farmer could plant in wheat, even if the farmer consumed all of the wheat on his or her own farm. Seeking to increase the price farmers would get for their wheat, the government restricted the number acres each farmer could plant. Mr. Filburn planted 23 acres in winter wheat, rather than the 11.1 acres he had been allotted. Most, if not all, of the wheat was consumed on his farm. He was fined, but appealed the fine on the grounds that it exceeded the powers of the federal government to tell farmers how many acres they could plant. That power is not listed in the Constitution, and, he claimed, could not be implied as "necessary and proper" for carrying out any listed power. True, Congress could regulate interstate commerce, but he claimed it could not regulation production such as his, which was not commerce (as it was not sold) and it was not interstate, as it did not cross any state boundaries. Justice Robert Jackson disagreed, handing down the decision of the court in Wickard v. Filburn (1942) (and, again, the emphasis is mine):
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. . . .
That appelees' own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.
As price is affected by both supply and demand, giving the government power to regulate "practices affecting" prices in interstate commerce, gives the government nearly unlimited power over economic activity in the U.S. Can you think of an economic regulation that would not affect the price of some commodity in interstate commerce?
But it is not just in the regulation of economic activity that the government has implied powers. The government can use the elastic clause and the interstate commerce clause to promote other goals: morality, justice, safety, community, and so on. In the 1960's, for example, the government used the elastic clause and the interstate commerce clause to promote morality and justice by desegregating restaurants and other places serving the public. The lead case, Katzenbach v. McClung (1964), dealt with Ollie's Barbeque in Birmingham. Ollie did not allow blacks to eat in the dining room, but served them only at the drive-thru window. The Civil Rights Act of 1964 required Ollie to start serving blacks in the dining room. Ollie claimed that the Act exceeded the powers of Congress, as the main purpose of the act was a social goal, desegregation, not an economic goal, such as regulation of prices. He argued further that he served few interstate travelers, and that he purchased the food he served within the state. Justice Tom Clark, in handing down the decision of the court, did not see that the main purpose of the legislation was of any importance; the question was one of power. Clark ruled that since a substantial percentage of the food served at restaurants such as Ollie's has previously moved in interstate commerce, the government has the power to regulate practices affecting the demand for the food. Desegregation might be expected to increase demand for food at the restaurant, which would increase demand from the in-state suppliers, which would, in turn, increase demand from interstate providers. Thus the government has the implied power to desegregate restaurants and other places serving the public, not because it has the power to directly correct injustice or to improve morality, but because it has the implied power to regulate practices that indirectly affect the prices of goods or services that travel, have traveled, or will travel in interstate commerce.
The elastic clause in combination with the interstate commerce clause makes it almost impossible to successfully argue that anything the government wishes to do is forbidden to it because that power is not included on the "thou shall" list. In a sense, the attempted compromise of using the "necessary but proper" clause has failed. The "thou shall" list is largely irrelevant. For the Supreme Court to declare that an act exceeds the powers granted to the government, the Court generally has to find that the act violates a specific prohibition, rather than that the act is not justified by the powers granted to government: i.e., that it is on the "thou shall not" list, not that isn't on the "thou shall" list.
How effective have the specific prohibitions been in constraining government power? Look at the next two chapters and judge for yourself.
Suppose the U.S. government passed a law saying no one may raise more than 5 potted tomato plants. Suppose further that a student who was fined for raising 7 potted plants on the balcony of her apartment challenged the law, claiming that it exceeded the powers granted the government under the Constitution. (Assume that she was eating all of the tomatoes that she produced.) Based on past court cases, how might the government argue that they do have the power to pass such a law? Would the Supreme Court probably agree with them?