Where were all the Constitution’s defenders when the feds raised the smoking age?

Where were all the Constitution’s defenders when the feds raised the smoking age?

On December 20, President Trump signed legislation purporting to impose a single national age of 21 for selling tobacco products.

Obviously, the measure reduces the freedom of millions of Americans who are legally adults in almost every other respect—including (correctly or not) the right to vote. Moreover, setting minimum consumption ages is not a power the Constitution grants the federal government. The Constitution reserves it to the states.

The issue here, of course, is not whether tobacco products are safe. They clearly are not. The issue here is whether our Constitution and the freedoms it protects are safe. As this episode demonstrates, they clearly are not.

Regulating local sale and consumer use of products is an exercise of what lawyers call the “police power.” This phase does not refer to your local police officers; it is an older use of “police” to mean “policy.” The police power is authority to adopt regulations to protect public health, safety, morals, and the general welfare. Under the Constitution, the states retain broad police power, with constitutionally-imposed exceptions.

By contrast, the Constitution grants the federal government only certain enumerated (listed) powers, including police power within Washington, D.C. and other federal enclaves and the federal territory. Outside those areas—as the Supreme Court has reiterated—the federal government has no general police power.

This is why when advocates of Prohibition sought to ban alcohol use, they did so by constitutional amendment.

Those who benefit from centralized power are always touting some problem for which the “solution” is ever more centralized power, and they don’t care much about constitutional limits. In 1984 their “solution” was to impose a national drinking age of 21. However, in 1984 (unlike now), federal politicians recognized that they couldn’t do this by decree. Instead Congress adopted legislation making a relatively small portion of federal highway funds contingent on states raising their own drinking ages. The Supreme Court later upheld this approach.

To those who understand the Constitution, this was a dubious use of federal spending authority. But at least it showed that politicians retained a shred of respect for constitutional limits. That shred has now vanished. Republicans and Democrats, the president and his fiercest opponents—nearly all are complicit in this latest action.

When supporters of unbridled federal economic intervention consider the Constitution at all, they cite the power the Constitution grants Congress “to regulate Commerce . . .  among the several States.” Founding-era definitions make it arguable whether a retail sale is “Commerce” as the Constitution uses the word. (To the founding generation commerce was usually transactions among merchants.) But if it is commerce, then it is local rather than interstate.

It is true that the Constitution provides that Congress may adopt laws “necessary and proper” to carry out its powers. But as the Constitution’s advocates repeatedly pointed out during the debates over whether to ratify the document, the Necessary and Proper Clause merely explains rather than extends congressional authority. It clarifies that while regulating interstate commerce Congress may govern incidental activities, such as packaging and inspection of goods sent from state to state.

For example under the Constitution, Congress may require warning labels on products that cross state lines, just as states have authority to regulate, label, or even ban tobacco within their boundaries. But Congress has no power to impose a single national age for local consumption.

Several aspects of this episode are worth noting.  First, violating the Constitution to satisfy popular demand is bad, but this was worse: The new law was merely the result of bureaucratic and lobbyist pressure. For years the Food and Drug Administration has wanted to expand its empire to include tobacco. During the Obama administration the FDA got its wish. This law ratifies FDA’s overreach.

Second, Big Tobacco—foolishly thinking they could appease their enemies—supported the change. This is a textbook case of how bureaucrats and special interests team up to restrict the freedom and constitutional rights of others.

Finally: The proverbial dog did not bark. In recent years, we have heard a great deal of political posturing about how we need to defend the Constitution. Leftists wrap themselves in the Constitution to promote impeachment, weaken our borders, and impose their social agendas. Conservative politicians and the president trumpet the need to retract federal power to constitutional limits. Yet in the end, the posturing of politicians amounted to nothing. Almost all crowded meekly onto the latest bureaucratic bandwagon.


Reprinted from the Tenth Amendment Center.

Should we interpret the Constitution so the feds can oversee everything affecting more than one state?

Should we interpret the Constitution so the feds can oversee everything affecting more than one state?

The Constitution lists powers it grants to the federal government, reserving the rest in the states and the people. Over the last few decades, some federal powers—particularly those embodied in the Commerce Clause, Taxation Clause, Necessary and Proper Clause, and Property and Enclave Clauses—have become stretched out of recognition. The power to regulate interstate commerce, for example, has become authority to regulate the entire economy. The power to tax has become authority to spend on anything Congress wishes. And the Property and Enclave Clauses have been expanded into federal authority to hold as much land as the government wishes, for any purpose and any length of time.

Some liberal constitutional commentators defend this development with this argument: One of the Founders’ goals was to deal with spillover effects—externalities—among the states. They designed the Constitution, therefore, to give the federal government almost all power necessary to do so. Over the years, those spillover effects have become greater and greater, as the country has become more and more interdependent. Therefore, construing the enumerated powers expansively serves the purpose for which the Constitution was written.

In support, they cite the wording of the Virginia Plan, an outline for a constitution submitted early in the 1787 convention. The Virginia Plan would have granted the Congress power “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.”

There are several problems in relying on this wording. First, the framers ultimately rejected it in favor of a specific enumeration of federal powers. Indeed, late in the convention they rejected several attempts to add powers to the list. Second, they excluded many activities from the federal enumeration even though they recognized that they were tightly tied up with activities within the enumeration. The Founders often spoke about how commerce, for example, affected manufacturing, agriculture, and even religion and demographics. But only the regulation of commerce was given to the federal government; regulating the other activities was left to the states.

Third, when the framers did want the federal government to regulate connected areas, they listed each separately. For example, they listed distinctly the tightly connected realms of commerce, patent, and copyright.  Fourth, in Article I, Section 10, they recognized the power of states to deal with spillovers themselves by entering into interstate compacts.

Fifth, leading founders specifically represented that certain activities with interstate spillovers would remain outside central control.

And sixth, the argument that the central government ought to have power to control all activities with spillover effects proves too much. “Externality federalism” is inherently unstable. Because everything ultimately affects everything else, the central government can always make a case for central regulation.

But liberal commentators have an response: If the enumeration was a narrowing of federal power rather than just a clarification, then why did some pro-Constitution Founders claim that the document gave the federal government general authority to deal with spillovers? For example, speaking on November 26, 1787 at the Pennsylvania ratifying convention, James Wilson said:

Whatever object of government is confined in its operation and effects within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends in its operation or effects beyond the bounds of a particular state, should be considered as belonging to the government of the United States.

Taken in isolation, however, this comment overstates the case. And it can’t be taken in isolation, because avoiding interstate spillovers wasn’t the framers’ only goal. In allocating power between the federal and state government, they considered but other factors as well.  Wilson admits this immediately after the last quoted remark, in which he mentions the competing values of clarity and certainty:

But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty; because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only in mathematical science, that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable; and accurate too, in as great a degree as accuracy can be expected in a subject of this nature.

In other words, if we used words such as those in the Virginia Plan, there would be endless debates and uncertainties. So we listed specific federal powers instead. We did the best we could to give the national government power over national matters. But where the enumeration falls short of giving the national government power over all externalities, then we sacrificed that value for clarity and certainty.

That’s not all. The framers also sacrificed the “externality federalism” value to another at least as important. Wilson recognized this, too. But first some explanation:

Very often it is better to tolerate bad spillovers than to incur the cost of suppressing them. If your neighbor’s dog happens to wake you with its barking one night, you do not immediately run out to challenge your neighbor.  You don’t call the police or kill the dog. The costs of such unkind and unneighborly behavior are too high. As long as nocturnal barking does not become a persistent nuisance, you tolerate it.

Similarly, state autonomy has benefits that outweigh the costs of most bad spillovers.  Wilson recognized this later in his speech:

When a confederate republick is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states. .  . .  The states should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole, than if it had remained in the several states. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties as states, so far as it is compatible with the welfare of the general and superintending confederacy.

Of course, the “good of the whole” consists of many more elements than merely suppressing spillovers: Allowing the people of individual states to govern themselves makes people happy. It improves the responsiveness of government. It gives people choices of different “policy packages” in different states.  It greatly reduces the chances of centralized tyranny. Values like that generally far outweigh the inconvenience of, for example, differing traffic laws, tax schemes, and insurance regulations.

As the framers did so often, in allocating authority between states and federal government they balanced competing values. The need for central regulation of interstate spillovers was only one of those values. It should not trump the others.

Reprinted from the Tenth Amendment Center.

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