Judge Andrew P. Napolitano

Since its inception, the government of the United States has inexorably exceeded its powers under the Constitution. All three branches have been complicit in a consistent pattern of constitutional indifference.

Congress has regulated in areas of governance nowhere articulated in the Constitution. Its general regulatory powers were granted to address interstate commerce, but during the FDR years, the Supreme Court ruled that Congress can regulate events that affect interstate commerce. This has resulted in federal regulation of matters too infinitesimal to measure, that are not commercial and devoid of movement across interstate lines.

The most extreme of these is the regulation of a farmer’s small field of wheat, all of which was ground into flour and consumed as baked goods by the farmer’s family. Though this had no measurable effect on interstate commerce, the court ruled that if you add up all the similarly situated farmers who may do the same, the aggregate will affect interstate commerce. And, by growing their own wheat and baking their own bread, the farmer’s family was buying less bread from their local grocer and that – though truly infinitesimal – affected interstate commerce.

To James Madison, who was the scrivener at the Constitutional Convention and who drafted the Commerce Clause, the word “regulate” in “to regulate Commerce… among the several States” meant “to keep regular.” Indeed, one of the main reasons for the elites’ displeasure with the old Articles of Confederation, and a significant impetus for the Constitution itself, was the effect on commerce of state tariffs and monopolies and their use to impede businesses from out of state.

This was the reason for granting Congress the power to keep commerce regular. But power corrupts, and keeping it regular led to regulating everything that affects it – the speed with which commercial goods moved, the ages and wages of those who worked to produce them, even the prices that could be charged. And the courts permitted all this, in defiance of the Constitution, which prohibits the feds from interfering with contracts without due process.

But all of this, as deleterious as it has been to personal liberty and limited government, takes a back seat to presidential extraconstitutional behavior. And that behavior is nowhere as manifest and harmful as war.

War is the health of the state because it induces fear among the people and thus their compliance, produces jingoistic patriotism and abject hatred of the persons in the country that is the object of war, facilitates vast borrowings in order to pay for the war, enriches elites, slaughters innocents and curtails the civil liberties – the natural rights – of those opposed to the war.

The object of war is, of course, to kill people in a foreign land. Hence the mandate of the Framers that this should not take place without a substantial nation-wide consensus in support of the killing. The Framers of the Constitution so feared wars on presidential whim that they made it clear that only Congress can declare war.

Yet, within months of taking office in 1797, President John Adams fought a war against France without a congressional declaration of war. This was unthinkable at the time, and in order to stifle domestic political dissent, he commenced a regrettable American tradition of silencing domestic opposition to foreign wars.

As we approach America’s 250th anniversary, we see that constitutional indifference leads to leviathan and war by whim. Speech that opposes war should be praised because it exposes unconstitutional behavior, challenges authoritarianism, forces the government to explain its killings and is a hallmark to tolerance in a liberal democracy.

Without free speech and constitutional fidelity, what are we celebrating next month?