Freedom and the

American Constitution
Gene Healy
Cato University
July 23, 2008
 The Republic of Cynicism
Federalists and antifederalists both agreed that man in
his deepest nature was selfish and corrupt; that blind
ambition most often overcomes even the most clear-
eyed rationality; and that the lust for power was so
overwhelming that no one should ever be trusted with
unqualified authority.
--Bernard Bailyn, The Ideological Origins of the American Revolution (1967)
 Skepticism toward Power:
Madison
In no part of the constitution is more wisdom to
be found, than in the clause which confides the
question of war or peace to the legislature, and
not to the executive department. the trust and
the temptation would be too great for any one
man.
--Madison, Helvidius IV (1793)
 Skepticism toward Power:
Hamilton
The history of human conduct does not warrant
that exalted opinion of human virtue which
would make it wise in a nation to commit
interests of so delicate and momentous a kind,
[as those involved in the treaty power] to the
sole disposal of a magistrate created and
circumstanced as would be a President of the
United States.
--Federalist No. 75
 Where Were Going
Structure
Specific Provisions:

The General Welfare Clause

The Commerce Clause
The Vesting Clause
The Commander in Chief Clause
The Judicial Power

What Went Wrong?

What to Do?
The Constitutions Structure
 Madisons Nightmare
The accumulation of all powers, legislative,
executive, and judiciary, in the same hands,
whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny.
--Federalist No. 47
 Ambition Counteracting
Ambition
The interest of the man must be connected
with the constitutional rights of the place. It
may be a reflection on human nature, that such
devices should be necessary to control the
abuses of government. But what is government
itself, but the greatest of all reflections on
human nature?
--Federalist No. 51
 Enumerated Powers
The powers delegated by the proposed
Constitution to the federal government are few
and defined. Those which are to remain in the
State governments are numerous and indefinite.
The former will be exercised principally on
external objects, as war, peace, negotiation, and
foreign commerce.
--Federalist No. 45
 Federalism Armed
To these would be opposed a militia amounting
to near half a million of citizens with arms in
their hands, officered by men chosen from
among themselves, fighting for their common
liberties, and united and conducted by
governments possessing their affections and
confidence.
--Federalist No. 46
 The General Welfare Clause
The Congress shall have Power To lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general
Welfare of the United States
--Article I, sec. 8, cl. 1
 The Commerce Power
The Congress shall have power to regulate
Commerce with foreign Nations, and among the
several States, and with the Indian Tribes
-- Article I, sec. 8, cl. 3
 The Vesting Clause
The executive Power shall be vested in a
President of the United States of America
--Article II, sec. 1, cl. 1
 Our Commander in Chief?
In this respect his authority would be nominally the
same with that of the king of Great Britain, but in
substance much inferior to it. It would amount to
nothing more than the supreme command and direction
of the military and naval forces, as first General and
admiral of the Confederacy.
-- Federalist No. 69
 An Impenetrable Bulwark
The judicial Power of the United States shall be
vested in one supreme Court, and in such
inferior Courts as the Congress may from time to
time ordain and establish.
--Article III, sec. 1
 How Prescient Were the
Framers?
The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and
from which no apprehensions are entertained.
--Federalist No. 45

If the federal government is to have collectors of

revenue, the State governments will have theirs also.
And those of the former will be principally on the
seacoast, and not very numerous
--Federalist No. 45
 The Progressives Intellectual
Revolution
The best rulers are always those to whom great power
is entrusted. It is, therefore, manifestly a radical defect
in our federal system that it parcels out power and
confuses responsibility as it does. The main purpose of
the Convention of 1787 seems to have been to
accomplish this grievous mistake.
--Woodrow Wilson, Congressional Government (1885)
 The General Welfare State
Congress may spend money in aid of the
general welfare.
--Helvering v. Davis, 301 U.S. 619 (1937)
 Delegation Running Riot
The Congress is not permitted to abdicate or to
transfer to others the essential legislative
functions with which it is thus vested.
--Schechter Poultry v. US, 295 U.S. 495 (1935)

The Emergency Price Control Act of 1942, held

not to involve an unconstitutional delegation to
the Price Administrator of the legislative power
of Congress
--Yakus v. US, 321 U. S. 414 (1944)
 Everything = Commerce
Even if appellee's activity be local and
though it may not be regarded as
commerce, it may still, whatever its
nature, be reached by Congress if it exerts
a substantial economic effect on interstate
commerce.
--Wickard v. Filburn, 317 U.S. 111 (1942)
What to Do?
 I often wonder whether we do not rest our
hopes too much upon constitutions, upon laws
and upon courts. These are false hopes; believe
me, these are false hopes. Liberty lies in the
hearts of men and women; when it dies
there, no constitution, no law, no court can even
do much to help it. While it lies there it
needs no constitution, no law, no court to
save it.
--Judge Learned Hand, The Spirit of Liberty
(1944)