The piece published by Cato, by Roger Pilon, is in the context of disaster relief, and particularly, relief form the devastation of hurricanes Katrina and Rita.
Guns and Butter: Setting Priorities in Federal Spending in the Context of Natural Disasters, Deficits, and WarBut before I defend that contention by addressing those questions, let me note that the nominal subject of these hearings"setting priorities in federal spending"concerns mainly a matter of policy, not law. Unless some law otherwise addresses it, that is, how Congress prioritizes its spending is its and the people's businessa political matter. By contrast, the subtext of these hearings, which I gather is the subcommittee's principal concern, is "the limits and role of our federal government as outlined in the Constitution," and that is mainly a legal question. I distinguish those questions, let me be clear, for a very important reason. It is because we live under a Constitution that establishes the rules for legitimacy. Thus, in the case at hand, Congress may have pressing policy reasons for prioritizing spending in a given way, but such reasons are irrelevant to the question of whether that spending is constitutional.
Constitutional Legitimacy
Because that distinction and the underlying issue of legitimacy are so central to these hearings, they warrant further elaboration at the outset. In brief, our Constitution serves four main functions: to authorize, institute, empower, and limit the federal government. Ratification accomplished those ends, lending political and legal legitimacy to institutions and powers that purported by and large to be morally legitimate because grounded in reason. Taken together, the Preamble, the first sentence of Article I, the inherent structure of the document, and especially the Tenth Amendment indicate that ours is a government of delegated, enumerated, and thus limited powers. The Constitution's theory of legitimacy is thus simple and straightforward: To be legitimate, a power must first have been delegated by the people, as evidenced by its enumeration in the Constitution. That is the doctrine of enumerated powers, the centerpiece of the Constitution. For the Framers, it was the main restraint against overweening government. In fact, the Bill of Rights, which we think of today as the main restraint, was an afterthought, added two years later for extra precaution.Once that fundamental principle is grasped, a second follows: Federal powers can be expanded only by constitutional amendment, not by transient electoral or congressional majorities. Over the years, however, few such amendments have been added. In the main, therefore, Article I, section 8 enumerates the 18 basic powers of Congressthe power to tax, the power to borrow, the power to regulate commerce with foreign nations and among the states, and so forth, concluding with the power to enact such laws as may be necessary and proper for executing the government's other enumerated powers. It is a short list, the idea being, as the Tenth Amendment makes explicit and the Federalist explains, that most power is to remain with the statesor with the people, never having been delegated to either level of government. ... [TONS of snippage]
From Limited to Unlimited Government
The great constitutional change took place in 1937 and 1938, during the New Deal, all without benefit of constitutional amendment; but the seeds for that change had been sown well before that, during the Progressive Era. 3 Before examining that transition, however, I want to lay a proper foundation by sketching briefly how earlier generations had largely resisted the inevitable pressures to expand government. It is an inspiring story, told best, I have found, in a thin volume written in 1932 by Professor Charles Warren of the Harvard Law School. Aptly titled, Congress as Santa Claus: or National Donations and the General Welfare Clause of the Constitution, this little book documents our slow slide from liberty and limited government to the welfare state and that was 1932! In truth, however, Warren's despair over that slide notwithstanding, the book is a wonderful account of just how long we lived under the original design, for the most part, before things started to fall apart during the Progressive Era. And so I will share with the subcommittee just a few snippets and themes from the book, along with material from other sources, to convey something of a sense of how things have changednot only in the law but, more important, in the culture, in our attitude toward the law. ... [EXCELLENT summary of history snipped]http://hsgac.senate.gov/_files/102505Pilon.pdf
But oh my, what a range of articles that refer to it! And therefore, many writings with contents that ARE available on the web.
The Unconstitutional Congress - The GOP Misses the Best Argument for Limiting Government
Stephen Moore"The framers of the Constitution were great clockmakers in the science of statecraft, and they did, with admirable ingenuity, put together an intricate machine, which promised to run indefinitely, and tell the time of the centuries." --James M. Beck, Solicitor General of the United States, 1925-28
In 1800, when the nation's capital was moved from Philadelphia to Washington, D.C., all of the paperwork and records of the United States government were tightly packed into 12 boxes, and then transported the 150 miles to Washington on a horse and buggy. That was truly an era of lean and efficient government. ...
No matter how long one searches through the Constitution, it is impossible to find any language that authorizes at least 90 percent of the civilian programs that Congress crams into the federal budget today.
There is no granting of authority for the federal government to pay money to farmers, run the health-care industry, impose wage and price controls, give welfare to the poor and unemployed, provide job training, subsidize electricity and telephone service, lend money to businesses or foreign governments, or build parking garages, tennis courts, and swimming pools. The Founders did not create a Department of Commerce, a Department of Education, or a Department of Housing and Urban Development. This was no oversight: they simply never imagined that government would take an active role in such activities. ...
It is a strange and sad curiosity that in the entire debate now raging in Washington over downsizing government, not a single member of Congress of either party has objected to spending on the grounds that "I cannot lay my finger on the article of the Constitution which grants a right to Congress to expend money or regulate the economy for this purpose." It shows how far we have strayed from constitutional government that such a protest is not even bothered with.
What the Congress needs now is a few Madisons, Jeffersons, Pierces, and Crocketts.
http://patriotpost.us/histdocs/moore_unconstitutional_congress.asp
And a couple more, just links ...
Business and the New Deal by James J. Martin (Reason Dec. 1975)
Our Unconstitutional Congress By Stephen Moore (Cato 1997)
Did you guys know that the Senate is in session???