Ken McElroy Online

On the Fifteenth, Remember the Tenth

Ken McElroy
April 23, 2003

It's tax season again, with the dreaded date of April 15th just passed, so everyone has been focused on getting their returns filed on time, grumbling as they write a check to the IRS, or celebrating the eventual return of a small part of their own money, held interest free by the government for the past year, in the form of a tax refund.

Additionally, the Bush Administration has proposed, and Congress is now considering, another round of tax cuts. Democrats, of course, object to any return of taxpayer money to taxpayers.

Most citizens, aside from a few glassy-eyed militia types on the far fringe of society, concede that they must contribute some tax in order for the government to function. The question becomes, how much taxation is permissible or necessary? The "necessary" part is always open to debate. Though nobody defends wasteful inefficient spending, with massive pork barrel spending flowing to all 50 states "necessary" may have a different meaning for most congressmen than it does for the average American. But the argument over what is permissible hardly, if ever, takes place any more in America.

In the early years of the nation, arguments over the constitutionality of proposed spending were common. James Madison said, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." This was in response to an appropriation of just $15,000 for French refugees from Santo Domingo in 1794. Think of all the trillions of dollars that have been spent "on objects of benevolence" by the welfare state just in the last 40 years.

When was the last time you heard Congress or the president, a self-described "strict constructionist," debate the constitutional basis for any spending proposal? In all the recent debates about health care spending, education reform, etc., the Constitution was rarely, if ever, even mentioned.

The whole point for the existence of the Constitution is to limit the power and scope of the federal government. Most people think of those limits in terms of the Bill of Rights - free speech, free press, free exercise of religion, the right to a fair trial, etc. But the Bill of Rights is only one part of the Constitution. In fact, some of the framers didn't want to include the Bill of Rights, believing that it would serve to limit the protected rights of the people. As the Constitution's primary author James Madison argued, the Constitution puts limits on all aspects of federal action, including taxation and spending. At least that's the way it's supposed to be. The 10th Amendment, part of the Bill of Rights, says that those powers not specifically granted to the federal government are supposed to be left to the states or to the people.

If the government can take as much money as it wants for any purpose it wants, that's potentially as egregious a usurpation of basic inalienable rights as if they passed laws limiting free speech or the right to a fair trial. If your money or property is seized in some unconstitutional court proceeding, or by the IRS for unconstitutional purposes, what's the difference?

In recent years, most federal spending has been justified by the "interstate commerce" clause. That enumerated power grants the federal government the power to regulate commerce between entities in different states. The liberal interpretation of the interstate commerce clause apparently holds that any activity that has the remotest tangential connection to interstate commerce is subject to regulation by the federal government.

According to this view, the interstate commerce clause allows regulation even when a person or organization is not directly engaged in interstate commerce. That's analogous to saying that if you ever drive a car, own a car, or ride in a car, you're subject to DMV regulation at all times, even when you're sitting in your living room and your car is in the garage.

For the most part, all this is like standing around arguing whether to close the barn door or not, after the cow has run off and is already miles away. Politicians won't dare touch the subject, because to do so would open up a huge can of worms, calling into question the legitimacy of many existing federal programs. But wrongs need to be pointed out from time to time, even if there isn't much chance of correcting them, at least in the short term. It's wrong for Congress to ignore the Constitution - any part of the Constitution. Remember that the next time you hear some big-spending politician bloviating about his reverence for the Bill of Rights.