Marco Rubio’s Eleventh Right

by Charles C. W. Cooke
It will take more than a constitutional amendment to restore limited government.

On Tuesday morning, Marco Rubio unveiled what he hopes will be America’s 28th constitutional amendment. “If passed by Congress and ratified by the states,” the senator declared, the revision would render it illegal for the federal government to “force citizens to purchase goods or services at the risk of being hit with a tax penalty.” Thus, the People would “reassert constitutionally limited government” in the United States.

Rubio’s amendment is a transparent attempt to repeal Obamacare by the highest means possible. But, more than that, it would serve as a wider prophylactic, contrived to slow the damage that last year’s National Federation of Independent Business v. Sebelius decision piled on top of 80-odd years of expansionist jurisprudence. Although his project is futile, Rubio’s instinct is admirable.

Nevertheless, that it is necessary for advocates of limited government to propose such an explicit measure at all is inordinately depressing, a bleak indication of just how far down the road toward constitutional hollowness the United States has come. Were Rubio’s amendment to be ratified, it would become the eleventh provision that specifically prohibits the federal government from doing something that it was never allowed to do in the first place, and the first enumerated admission that the constitution’s essential logic has been unraveled by history.

Our modern assumptions about the nature of the Constitution are distressingly topsy-turvy. Here, Alexander Hamilton, who argued determinately that it made no rational sense to add an inventory of rights to a charter of limited power, has proven typically prescient. By 2013, alas, the Bill of Rights has become what Hamilton’s Federalist contingent feared it would: an exhaustive list that outlines the few areas from which government action is barred. Rubio’s contribution would add to this list, certainly. But it would not “reassert constitutionally limited government.” No amendment can do that.

The argument that liberty would be most efficaciously preserved if certain basic rights were expressly protected was made by a powerful Anti-Federalist contingent that included Samuel Bryan, Robert Yates, George Clinton, Patrick Henry, the “Federal Farmer,” and the colonies of Massachusetts, New Hampshire, Virginia, and New York. This awkward cadre held that a Bill of Rights was imperative if the implied powers of the proposed federal government were to remain in check. It made the establishment of such a check the price of its support, and in doing so, the group rejected — or at least weakened — the virtuous assumption that pre-existing British common law, and the rights of free Englishmen, would survive the installation of the new Constitution intact.

For reasons both genuine and guileful, the Anti-Federalists’ request was fiercely opposed by the Federalist contingent, which considered the addition of such prohibitions to the Constitution to be “unnecessary,” “imprudent,” and even “dangerous.” In Federalist No. 84, Alexander Hamilton charged that advocates of a charter of unalienable rights were stuck in an Old World mindset. Enumerated rights, he wrote, were “stipulations between kings and their subjects,” they were “abridgements of prerogative in favor of privilege,” and they were “reservations of rights not surrendered.” As such they had no place in the new republic, for they had “no application to constitutions professedly founded upon the power of the people.” The people did not need assurance of their inalienable rights, so his argument went, as there was no provision for their removal. Hamilton assured the Constitution’s opponents that “here . . . the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

Although he acquiesced with the Anti-Federalists in order to secure passage of the Constitution — agreeing for no “other reason than that it is anxiously desired by others” — James Madison concurred with Hamilton in principle. It was exactly “by the manner in which the Federal powers are granted” that “the rights in question are reserved,” Madison wrote to Thomas Jefferson in October of 1788. In Philadelphia, James Wilson had warned that a Bill of Rights might lead to “everything not expressly mentioned . . . being presumed to be purposely omitted.” This would, as Madison put it in a 1792 essay for the National Gazette, contravene the central premise of the document, which was “a charter of power granted by liberty, not a charter of liberty granted by power.”

Some scholars suggest that the Ninth and Tenth Amendments squared this circle, as they were intended to do, by providing an effective guarantee that the natural rights of Englishmen still obtained in America. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” certainly appears to be clear enough. But there is still a logical flaw in this: Why, if natural rights are unalienable, were the first eight amendments deemed necessary at all? Are the rights they protect somehow even less alienable?

None of this is to say that, in the grand scheme of things, America is worse off for the Bill of Rights’ having been included. It is possible — perhaps probable — that, without the few “parchment barriers” that were carved out by the naysayers, the federal government would gradually have infringed upon all aspects of American life, and that America would now be Britain. Perhaps Wickard v. Filburn-esque decisions would have gutted free speech, the right to bear arms, privacy, and trial by jury, too. It is difficult to know.

Either way, the very fact that Rubio feels the need for a constitutional amendment to prohibit the federal government from forcing individuals to purchase private products is significant. Madison’s expressed fear that the government would end up doing “everything not expressly mentioned” has been realized. It seems that the Federalists were right that in a genuine system of limited government, free people do not need such specific guarantees of liberty, and the Anti-Federalists were right that when limited government withers, such guarantees are critical. Alas, neither development is good for liberty.

In theory at least, constitutional amendments designed to alter the power of government are supposed to go the other way around. “I had rather ask an enlargement of power from the nation where it is found necessary,” Thomas Jefferson wrote to William Nicholas in 1803,

than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.

Although our government has been expanded primarily by “construction,” our paper is not completely “blank.” But with each post-Wickard decision and the exponential gains afforded by the principle of stare decisis, it moves closer to being so. “Why declare that things shall not be done which there is no power to do?” asked a frustrated Alexander Hamilton in 1788. The maddening answer is that, as the Anti-Federalists predicted, the tendency is for governments to “enlarge their powers and abridge the public liberty.” “This principle,” wrote Brutus in Anti-Federalist No. 84, “which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.”

America’s experience, too. Carry on, Senator Rubio.

– Charles C. W. Cooke is a staff writer at National Review.

Did you like this?