Family Research Council

Constitutional silence does not necessarily justify federal action

By Rob Schwarzwalder Senior Vice-President


Rob Schwarzwalder is Senior Vice President at Family Research Council. This article appeared in The Journal Express on February 6, 2014.


Recently President Obama has spoken several times about his intention to use "executive orders" to bypass Congress and pursue things he wants accomplished.

In addition to showing a certain contempt for representative self-government (Congress is elected by the people, is accountable to them, and is not a mere inconvenience to be shunted aside by an aggravated chief executive), Mr. Obama's approach veers dangerously into murky waters. His potential actions will have to be scrutinized for their constitutionality, not only as to whether they violate something explicit in the Constitution, but also if they create or expand powers about which our charter text is silent.

Extra-constitutionality is no pretext for federal activism. Because the Constitution does not forbid something specifically doesn't mean such action is authorized by the Constitution inferentially. The propositions of the Constitution define and limit the roles of the federal government, and do so definitively.

Both the Left and the Right use the Constitution's muteness on any number of things as an excuse for federal legislation or regulation. But this is not to say that the Constitution makes room for them.

Otherwise, why would there be a Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." How would we know to what this amendment refers if the meaning of text regarding delegated federal powers was somehow opaque?

Or why would there be a process for amending the Constitution written within the text of that document itself? Why amend something whose words can simply be reinterpreted into a meaning commensurate with the political agenda of those in power?

With that said, an originalist reading of the Constitution does not mean that we compel wisdom and common sense to take a holiday. Prudence, the great qualifier of extremism and overreaction, is an intrinsic part of the conservative approach to politics (and life, for that matter).

Consider what often is called our "social safety net" - Social Security, Medicare, Medicaid, federally-funded public housing, the federal food stamp program. Conservatives can and should maintain that such a net is unjustified by the Constitution and that it should be fundamentally re-cast. However, this is not synonymous with calling for the net's immediate abolition.

Instead, conservatives need to make what improvements we can, when and where we can, whether modest or comprehensive. Upgrading our systems of old-age financial and medical insurance and health coverage for the poor is needed for greater efficiency, yes, but there is nothing compassionate about continued attempts to sustain things nearing collapse.

Rather than abolishing the "safety net," then, conservatives argue that what we need is a multitude of nets: State- and locally-run social services, retirement programs, old-age medical insurance plans, and so forth. States are closer to the needs of their own people, and are more accountable than intricate, robotic, anti-human bureaucracies in what Ronald Reagan called "a far-off capital," Washington, D.C.

To maintain that because conservatives cannot countenance the current system of social programs they therefore oppose the purposes of such programs is untrue. We simply agree with the Founders that diffusion of power and locality of authority are better guarantees of effectiveness and integrity than impenetrable national ones.

The Founders knew what they were about: They set limits on the federal government and gave states, counties, and communities great latitude to enact policies they thought best for those who live within them. One thing they did not do was imply that anything not forbidden can be done. Those who use constitutional silence as a justification for federal action are engaging not only in intellectual dishonesty but the deliberate erosion of representative self-government itself.

Meet The Author
Rob Schwarzwalder Senior Vice-President

Rob Schwarzwalder serves as Senior Vice President for the Family Research Council. He oversees the Communications, Policy and Church Ministries teams and manages the Policy (Full Bio)

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