The American political system was designed to limit government power. As conceived, the Constitution of the United States made it difficult for government to acquire new powers. The advantage of crisis to political leaders is that it enables new powers to be acquired in an extra-constitutional, but largely uncontroversial, manner.
The Constitution delegated powers that were, in James Madisons words, few and defined. They are listed in Article I, Section 8. Due to the exploitation of crises, many of those powers, which were intended as limits on government authority, have been construed broadly, to the point where they barely limit power at all. Examples include the general-welfare commerce clauses.
The structure of the Constitution provides a guide to its own interpretation. When it is suggested that Congress do something, the appropriate response is to examine Article I, Section 8, to see if the proposed activity is covered by one of the enumerated powers. If it is not, then the federal government may not engage in the activity. But over the years, this power-limiting procedure has been overthrown for one that readily permits the acquisition and expansion of power. The advocates of new powers ignore Article I, Section 8, and examine the Bill of Rights to see if the proposed activity is not specifically prohibited. Justice Antonin Scalia recently suggested that the Bill of Rights does not prohibit Congress from enacting a law requiring everyone to carry a national identification card, an idea that has been promoted in the wake of the September 11 attack on the World Trade Center and Pentagon. Scalia said that those who oppose such a law should propose a constitutional amendment to prohibit it.
This turns the Constitution on its head. The original Bill of Rights consisted of Amendments I through X to the Constitution. They were adopted by the first Congress after some of the original states ratified the Constitution on the condition that a declaration of rights is added. The Bill of Rights was intended to limit how the Congress carries out its enumerated powers, not to nullify the enumeration. While a blessing in many ways, the Bill of Rights unfortunately has encouraged many people, such as Scalia, to believe that the government may do anything not expressly prohibited there. Clearly, the framers saw things the other way around: the government may do nothing but what is expressly authorized in Article I, Section 8. The opposite approach has the perverse effect of turning the intentionally onerous amendment process against those who wish to preserve liberty.
Undoubtedly, the constitutional arrangement planned by the framers has not worked as envisioned. Both the enumerated powers and Bill of Rights have been turned against liberty, and it has largely occurred under the impetus of crisis. Congress, presidents, and the courts have used various sorts of emergenciesmilitary and economicto construe the provisions of the Constitution in ways most conducive to the expansion of power. Examples include censorship and suppression of dissent during wars, despite the First Amendment guarantee of freedom of speech and press, and the myriad economic controls imposed during the Great Depression. When the emergency passes, government sheds some of the newly acquired powers, but often they are just scaled back to become a routine part of government. By this process, as decades pass, government grows to an extent that previous American generations would have never recognized (the ratchet effect).
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