Limits on leviathan

Governments are created to remove us from a “state of nature” in which our unalienable rights are insecure, after which the primary challenge is to prevent those governments from threatening the rights they are brought into being to protect.

To paraphrase James Madison, we need government because men are not angels, and we need constraints upon the power of government because those who govern us are not angels either.

All constitutional government is therefore, by definition, “limited government” in the sense that constitutions exist to not just tell us what government can do but also what it can’t. If the government could do whatever it wishes there would be no point in having a constitution.

Such thoughts arise in response to President Biden’s employer vaccine mandate, the central question pertaining to which is not the desirability of vaccinations but how much power government should have and which levels of government should have it.

That something is a good idea (getting vaccinated) doesn’t necessarily mean that government, in this case the federal government, has the power to require it.

Indeed, one of the most difficult tasks in teaching American government is to disabuse students of the idea that what they favor must be constitutional and what they oppose can’t possibly be.

The American constitutional order is built upon a system of checks and balances along both the horizontal (separation of powers) and vertical (federalism) axes; between the different branches of the federal government in Washington, D.C., and in relations between that federal government and state governments, respectively.

The latter axis, within which Biden’s vaccine mandate will eventually be assessed for constitutionality, reminds us that the states have powers that the federal government doesn’t, and vice-versa.

As such, much of our citizenry seems baffled by the suggestion that there is something desirable to be done that the federal government might not have the rightful authority to do. One is reminded of Nancy Pelosi’s response—“are you serious?”—to the suggestion that parts of the Affordable Care Act might not withstand constitutional scrutiny.

When a government comes to do so much, people come to believe that it should be allowed to always do more, perhaps anything, and that any concerns over limits are merely expressions of libertarian eccentricity.

To remind, the United States is, properly understood, a union of states—with the states coming before and having created that union through a process of give and take at Philadelphia in the summer of 1787, after which a sufficient number had to ratify that new Constitution and that that ratification process featured an intense debate between Federalists (who argued that federal power would be kept sufficiently limited by the system of checks and balances) and Anti-Federalists (who believed that it would become tyrannical even with those parchment constraints).

The question of federal power was thus the original question at the heart of the American founding, and should be so now and always.

Some of the features of the Constitution most criticized these days— the composition of the Senate and the logic of the Electoral College, in particular—are intentional expressions of federalism, to the point where the critics reveal by their criticism their profound ignorance of the principles underlying the American constitutional order.

As to the particulars, some pundits have argued that the Supreme Court affirmed the power of government to mandate vaccines back in 1905 with Jacobson v. Massachusetts, but that and related cases (Prince v. Massachusetts, 1944) applied only to state power and thus provide no precedent of any kind for Biden’s federal mandate.

Put differently, just because states and the school boards of cities can require smallpox vaccination doesn’t mean that the federal government can require covid-19 vaccinations.

Even more disappointing than such legal confusion on the part of people who should know better has been the claim that Biden has been “forced” into taking possibly illegal action because people won’t do the “right thing” and get vaccinated, as if it is ever acceptable for a president to do something that is illegal, let alone in response to behavior on the part of U.S. citizens (the decision to not get vaccinated) that isn’t.

Biden is attempting to justify this vast expansion of federal power by reference to the workplace authority of OSHA, as if any edict from a regulatory agency should trump the “police powers” long assumed to be allocated to the states in the Constitution itself, more precisely by the plain language of the 10th Amendment.

There is, to repeat, no fine print in the Constitution which says “applies only in ordinary circumstances”; to the contrary, the true stress test of our commitment to constitutionality and the rule of law comes during periods of crises (including public health crises).

The OSHA end-around also reminds that perhaps the most pressing need in American politics is for Congress to claw back the powers it shortsightedly ceded to unelected federal bureaucrats all too eager to do the bidding of lawless executives with pens and phones.

So the same question asked with different words: For all practical purposes, are there now any limits on federal governmental power?

And if the answer is no, what’s the point of the Constitution?