June 9th, 2011

Of Plenary Powers and Constitutional Conservatism

In Federalist 45, James Madison included a brief argument which has nearly become canonized as part of mainstream constitutional and conservative thinking. Discussing the various powers delegated under the then-proposed U.S. Constitution by the states to the federal government, he declared:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.

Anyone who is the least bit involved in politics will find in this quote the genesis of countless arguments made in our day to oppose an overreaching federal government. Conservatives and constitutionalists alike attempt to use the enumerated powers listed in the Constitution as leverage with which to constrain the federal government within its prescribed bounds.

In making this argument, these individuals often then argue that a power not delegated to the federal government remains with the state, as Madison himself explained. Thus, the prevailing view is that in absence of a specifically enumerated and delegated power to the federal government, the states enjoy plenary (absolute) power over any given issue.

This conclusion is extremely dangerous. For if we are to agree that a government at any level enjoys absolute power over an issue, we divorce that government from any moral restraint and justify its arrogation of usurped authority. This argument should be rejected, not eagerly employed, by those who claim to champion limited government.

The truth is that individuals alone hold plenary power—the ability to freely act so long as they do not harm another—"unobstructed action according to our will within limits drawn around us by the equal rights of others," as Thomas Jefferson said. Individuals organize to form a government and empower that government to act as their collective agent. Barring a system wherein each participant voluntary and explicitly consents otherwise, governments may only be legitimately delegated authorities which the individuals themselves possess.

This deserves further explanation. If ten people moved to an island and organized a government, they could all agree to a law for that government requiring that one half of their produce would be donated to a communal supply. While none of the individuals have the power to compel their neighbor to do this, they have all explicitly stated that they will abide by the law.

But consider when those individuals have children. These children, upon becoming adults and participants within the government, find themselves bound by an oppressive rule agreed to by their parents, but to which they never gave consent. This law—not based on any legitimate individual authority—can only morally be binding upon those who agreed to it. All other laws are only legitimate insofar as they are based on authority all individuals within that government themselves possess. This was persuasively demonstrated by Frédéric Bastiat, who concluded:

It seems to me that the rights of the state can be nothing but the regularizing of pre-existent personal rights. For my part, I cannot conceive a collective right that does not have its foundation in an individual right or presuppose it. Hence, to know whether the state is legitimately invested with a right, we must ask whether the individual has that right in virtue of his nature and in the absence of all government.

States cannot justifiably be considered to possess absolute authority over anything. As with the federal government, a state or municipality can only legitimately operate based on one of the two factors here discussed: explicit, voluntary consent, or delegated authority which every individual himself enjoys. State constitutions, municipal code, and laws at every level of government routinely violate this principle; indeed, those who are most vocal in their cries for limited government actively assert that states can do as they please.

It is hypocritical to oppose a federal program while supporting its state-based counterpart. Yes, the federal government lacks authority to compel individuals to pay for the medical needs of their neighbors, for example. But where does a state derive such authority? Tyranny in any amount is hardly more palatable simply because it is enforced by one’s neighbors, rather than an individual a thousand miles away.

Albert Jay Nock explained in his essay The Criminality of the State that “You get the same order of criminality from any State to which you give power to exercise it; and whatever power you give the State to do things for you carries with it the equivalent power to do things to you.” Constitutionalists, conservatives, and all who claim to support any type of restraint upon the state must abandon the argument that states enjoy plenary power, and seek to impose moral restraints upon all levels of government.

6 Responses to “Of Plenary Powers and Constitutional Conservatism”

  1. Eric
    June 9, 2011 at 7:51 pm #

    I’d be interested in a poll taken to determine how many people in this country ACTUALLY believe that government, in general, has any real limitations. I tend to believe that if people are being molested by their own government, then that government has pretty much exceeded all bounds.

  2. Jeremy
    June 9, 2011 at 9:36 pm #

    Re: the 10 islanders, I’ve pondered this very situation over and over and I cannot agree with your conclusion. Let’s say there were 20 children and no boats to go anywhere. If one disagrees what should happen? Should the other 29 people be required to change based on the will of the one if the one chooses to not participate? Additionally if the children all agree with the laws are they oppressed or not? Does it matter? If all of the children disagree are they justified in an uprising against their parents? Do they ignore the law they did not agree to and continue on as they were?

    From my LDS perspective I think that here on earth we don’t get to make this choice. We can’t simply throw out all the rules every generation, or even realistically agree on them. Here where we have finite lives this cannot apply, there would be a very short ceiling on what is possible. We would spend much of our time reinventing the wheel. Our job in this life is to work towards this ideal, but not at the expense of things more important. It’s our job to make the best choices we can in the situation we find ourselves in. That said, I do think that complete unity is the goal, and you are correct on the eternal principle. There’s a reason why unity is such a big deal.

  3. Edward
    June 10, 2011 at 12:53 pm #

    Connor, I think you’ve explained the principle (and one with which I agree). If your only point is the principle, then I’ll leave it there. However I think that the reality is so far from the principle you explain, and so extremely unlikely. I guess what I’m saying is that I think that it would be a pretty good compromise to have a much more limited federal government, even if some of the states adopted all the programs the federal government had. Though I don’t think you should have to move somewhere to enjoy personal freedom, at least there would be more of a choice.

    But really, I understand your point. I would agree that individuals alone hold plenary power.

  4. JJL9
    June 10, 2011 at 2:52 pm #

    Jeremy, I think you have made a fundamental mistake in your thinking. The beauty of what we might term “natural law” or even “God’s law” is that the answer to your question, “Should the other 29 people be required to change based on the will of the one if the one chooses to not participate?” is: Absolutely not! Those 29 people can do anything they want that does not violate the natural laws of the other guy. He is naturally entitled to live his life according to the dictates of his own conscience, and he should reap the benefits or endure the consequences of his own choices. As long as he does not violate the natural rights of the other 29, then there is peace and harmony.
    As to your assertions:
    “From my LDS perspective I think that here on earth we don’t get to make this choice.”
    “We can’t simply throw out all the rules every generation, or even realistically agree on them.”
    “Here where we have finite lives this cannot apply, there would be a very short ceiling on what is possible.”
    “We would spend much of our time reinventing the wheel.”
    I’m glad our “founding fathers” didn’t agree with that. In fact, from an “LDS perspective” we know that the opposite was true for them, that they were inspired to “throw out all the rules” and that it required the pledging of their fortunes, their lives, and their sacred honor. It required the spilling of much blood.
    As for “reinventing the wheel”, there is no need. That’s the beauty of “natural law” and the principle of agency and self accountability. We DON’T have to agree on the best system. You can voluntarily participate in any system you would like to. There is no wheel to reinvent. It’s the invention of complicated “wheels” (systems of government) that causes problems, creates the mechanism that allows people to control other people, to make decisions for them, and causes suffering, poverty, and death.
    Connor, every time I hear someone decrying Federal violations of our basic rights and then using the term “states rights” in the same breathe, I cringe. I always comment that although I would rather have to face a bully the size of our state than one the size of the United States, that I’d rather not have to face one at all. The proper role of government is extremely limited. While I agree with the principle that whenever possible it is better to have closer, more local government in control, I also agree with the general principles of limited government. Defeating ObamaCare, only to have RomneyCare , HuntsmanCare, HerbertCare, SkokosCare, or anyone else’s mandated healthcare plan take its place, is no guarantee at all that I am better off. Leave my health care to me. I don’t need the state telling me what to do any more than I need the federal government doing so.

  5. Jeremy
    June 11, 2011 at 1:46 am #

    I disagree. The obvious example to me is a parent-child relationship. I have 4 children. They are all children of God just as I am. However, I’ve been given stewardship over them. Until they grow up and can take care of themselves they don’t have a choice — I direct their lives, their situations. I make the rules and though imperfect as those rules are, God expects my children to honor their father and mother, just as I’m expected to honor my parents. That doesn’t mean I get to do whatever I want, and that doesn’t mean my own choices don’t have consequences. However the opposite is also true — my children aren’t living in a vacuum and like it or not, they are in this stewardship chain.

    The founding father’s stewards were abusive and the founders of our country did what they felt was right. I’m not condoning tyranny. I side with our founders, they made honorable decisions that I agree with. Sometimes this needs to be done.

    When you say that we don’t have to reinvent the wheel, that you can voluntarily participate in any system that is true. But that doesn’t mean you are in a vacuum, that doesn’t fix anything. We don’t get to live independently of others, we are all tied together. Crabs in a bucket, we stand or fall together (or possibly fight amongst ourselves about the process). If the one disagrees with the 29, what recourse does the one have short of going along anyway or leaving? If you can’t get everyone to agree you effectively have to reinvent the wheel. If each generation is forced to re-visit the decisions of their parents then there will be little building from generation to generation.

    I could go on, but in short, I believe that each person individually has a choice. I don’t believe that each individual needs to revisit the same choices consciously that the previous generation made. Their very reality is based upon the decisions of their forebears.

    But then I could be wrong or lacking in imagination. It could be argued that the pride cycle is a generational issue for just the reasons I’ve described. However, reducing everything to an individual decision takes away from the whole. There’s a reason we’re striving to be unified, that unity is such a big theme in the scriptures. We’re not intended to go it alone. Sure, we have been given the choice… but we don’t all need to break our arms to know that breaking our arms are bad. I suppose all of this may just come down to semantics, and at what level explicit agreement is necessary, and how that is communicated to others. =)

    I suppose what I’m going on against is the idea that explicit consent needs to be given. I think one can live life full of good choices and doing nothing “incorrect” while never giving explicit consent to their circumstances in society. People in general make horrible assumptions. However people in general make very good decisions if their assumptions are true. Given the proper foundation, explicit consent is at best wasteful.

    Thanks for the thoughts and the thought process I got in response JJL9.

  6. JJL9
    June 11, 2011 at 5:04 pm #

    “The obvious example to me is a parent-child relationship.”

    The obvious question: Who are the parents and who are the children in this comparison?

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