Alternate title for this post: “That sounds like a good idea” government
When discussing what government should and shouldn’t do, it’s rare for anyone of any political persuasion to ask, “Does the government have the power to do that?”
That’s utilitarianism — justifying policies and actions on what we believe it will do for overall welfare or happiness.
Our thinking usually goes like this: “Send more people to college? That sounds good. Of course I’m okay with that.” “Help the poor? That sounds good. Of course I’m okay with that.”
Often, even the stuff that sounds good, isn’t good in practice. The “sound-good/feel-good” utilitarian policies often produce unintended consequences that cause more of the problem that they’re intended to help. But that’s a subject for another blog post.
This post is about how it doesn’t even occur to most of us to ask whether the government has the power to do whatever sounds good, or what would have to happen to give government that power.
Those should be the first questions we ask.
We treat it as a given that the country’s founders designed a government for that time and we live in different times.
We don’t consider why they tried to design a government to limit the power of government.
I had a couple recent conversations that I found interesting. They started as a discussion about my homeowners’ association and the following is a mash-up of those conversations plus a little staircase wit:
Me: My neighbors are fighting over fence placement. Officers of my neighborhood homeowners association have threatened to file suit, on behalf of the homeowners association, over the placement of a fence that a neighbor recently built.
I doubt the HOA’s claim will stand in court. The fence placement covenant was added to the covenants by the officers, but our covenants requires any covenant change to be approved by 60% of homeowners.
The fence-building neighbor pointed out the officers did not get that approval from homeowners to amend the covenants. I agree.
The officers contended that too few people show up at the annual meeting to get 60% approval for a change.
The fence builder contends that doesn’t matter. The covenant amendment process does not specify the approval take place at the annual meeting. They should have gone door-to-door to collect signatures to enact the change. I agree with my fence building neighbor again.
The other people: I do too. It seems like a cut and dry case to me. That’s why I don’t live in neighborhoods with homeowner associations. You get those people who run those things for their own benefit. It’s okay for them to add something to their house, but not for you to do it. It just becomes about politics.
Me: Exactly. When they say it’s okay for their home addition, but not yours, that’s an arbitrary exercise of power. That’s picking winners and losers.
And you do live in a homeowners association — our big one: the Federal government. The Constitution is like our homeowner association covenants. It defines what the homeowners association has the power to do and it also defines what needs to be done to change it.
In the Constitution, that’s Article V. My homeowners association covenant requires 60% of homeowners to approve a covenant amendment. The Constitution requires 75% of state legislatures to approve an amendment to the Constitution.
The officers of my neighborhood home owners association took it upon themselves to amend our homeowners association covenants, much like how Congress and Presidents have taken it upon themselves to effectively amend the Constitution without Article V approval.
[This is a part I wish I would have said] They generally do this by misinterpreting two words in the Article I, Section 8 Powers of Congress: Welfare and Commerce. These words were intended to give Congress the power to keep the U.S. safe and settle trade disputes between states.
But, those two words have been misinterpreted over the past hundred years to give government power to do whatever sounds good.
And, so the Article V of the Constitution is short-circuited for the following test: Will this improve welfare? Sure. That sounds good. Does this have anything to do with commerce? Sure. Okay.
The other people: [They really did say this] Well, I’m not so sure about that.
Me: [I did say this] Well, then can you explain why we have Article V of the Constitution if Congress can do whatever sounds good? Don’t you think it makes sense to have a formal and somewhat democratic process, in a government for the people and by the people, to amend the governing documents? How’s that different from expecting my HOA officers to follow the covenants and get 60% homeowner approval before amending our HOA covenants?