By my reading, almost nothing the federal government does is Constitutional. The entire national security state and empire are dubious at best. The welfare state is unauthorized. Nothing in Article I, Section 8, the clause empowering Congress to legislate, gives that body the general authority over education, health care, the environment, most businesses, and most law and order issues. A strict interpretation of the Constitution would mean the immediate abolition of the Department of Education, the Department of Health and Human Services, the Federal Bureau of Investigation, the Central Intelligence Agency, federal immigration controls, the Drug Enforcement Administration, the Department of Energy, antitrust regulation, the Food and Drug Administration, NASA, Obamacare, Medicare, Social Security, and hundreds of other programs and agencies.
Virtually everything that both Obama and Romney propose to do as president is unconstitutional and therefore illegal.
Yet this seems not to matter to most Americans. And sadly, it has been this way for a long time. In fact, the first few presidents of the United States violated the Constitution flagrantly. Washington’s championing of a National Bank, Adams’s Alien and Sedition Act, and Jefferson’s embargo and Louisiana Purchase were all on very shaky ground. But the Constitution was at least taken seriously on some theoretical level for most of the nineteenth century. As late as the 1920s, politicians realized they could not simply ban alcohol on the federal level without changing the Constitution with the Eighteenth Amendment. By 1937, no such amendment was even seriously considered for Franklin Roosevelt to ban marijuana. And why would it? The entire New Deal was a war on the Constitution that early on faced resistance from the Supreme Court, which only ultimately caved and supported FDR’s power grabs.
Partisans yap about the Constitution, but I don’t think they almost ever mean it. During the Bush administration, liberal Democrats attacked the president for unconstitutional searches on citizens without warrants and unconstitutionally depriving prisoners of due process rights in the war on terror. Now that Obama has run with these programs, his comrades have simply shut up about them. When Bush did it it was criminal. When Obama does it it is just playing politics, you see.
Similarly, conservative Republicans talk about Obama’s many crimes against the Constitution, yet where were they when Bush expanded Medicare, signed No Child Left Behind, and shredded the Bill of Rights in the undeclared war on terror? Almost everything Bush did was just as unconstitutional as everything Obama does.
It would be easier to count the number of things Congress and the president do that do have some Constitutional legitimacy. They fund and run the Post Office. Senators face election contests every six years. The federal government levies an income tax.
But this raises the question of how great the Constitution is to begin with. It went into effect in 1789 and was amended with the Bill of Rights in 1791, after years of revolution against Great Britain over centralized authority, militarized law enforcement, and taxation. Soon after, the DC government cracked down on tax protests and stripped American political enemies of due process rights and the freedom of speech.
The Constitution, indeed, ushered in a far bigger, more powerful, more easily exploitable government than had existed under the Articles of Confederation. Founding Fathers like Patrick Henry wanted nothing to do with it. Thomas Jefferson thought it was unnecessary. The document created a powerful president, advocated by quasi-monarchists to resemble the English king, a tyrannical judicial branch, and a powerful Congress with the authority to tax, declare war, create bureaucracies, and suspend habeas corpus, over the wishes of individual states. The so-called Anti-Federalists saw the Constitution as a betrayal of the American Revolution. In many ways, it was.
In short, the Constitution authorized a government worse than what existed before, and in some ways created a system worse than what the American colonists faced under British rule. Yet compared to the Constitution of 1789, the current federal government is still despotic. As I’ve said before, the Constitution is far from libertarian, but the federal government is far from constitutional.
Lysander Spooner, probably America’s greatest nineteenth century libertarian, was very critical of the Constitution, although believed the worst crime against liberty in his time—slavery—was illegal even by the imperfect Constitution’s standards. I guess that’s about how I feel.
Today, many Americans would say that my particular interpretation of the Constitution is both too cynical and too romantic. It is too cynical, presumably, because I see the abuses of liberty so early on in the framing of the document. It is too romantic, I suppose, because I still think today’s government is even worse than what the Constitution authorizes. For example, most Americans think plenty of things—the president’s powers to assassinate anyone he wants, to regulate whatever he desires, to bomb any country his heart is intent on bombing, to use the police power to shape the economy as he wishes—are perfectly Constitutional.
Looking at the two possible interpretations of what had happened in the United States, either that the Constitution was being blatantly violated or that it indeed allowed for the abusive federal government he saw, Spooner summed up my current attitude: “But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”