Can Congress Write Any Laws It Wants?

Can Congress Write Any Laws It Wants?; by Andrew P. Napolitano; LewRockwell.com

"Some men think the Earth is round, others think it flat… But, if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? … NO."

When Robert Bolt wrote that truism in his play A Man For All Seasons, his protagonist, Thomas More, was attempting to persuade the jury at his trial for high treason that all governments have limitations, and that the statute he was accused of violating was beyond Parliament’s lawful authority to enact. Sir Thomas was there appealing to the natural law as well as to the common sense of his jurors: The government can’t change the laws of nature. As we know, he fared no better than those who today argue that Congress is not omnipotent, has natural, moral, and constitutional limitations on its power, and every day fails to abide them.

Jefferson wedded the natural law to American law in the Declaration of Independence when he wrote that our rights are "inalienable" and come to us from "Our Creator." Not only does federal law recognize that, but the whole American experience recognizes the natural law as the ultimate source of our freedoms and as a restraint on the government. Thus, the traditional panoply of American rights is ours by birthright and cannot be interfered with by an act of Congress or order of the president, but only after due process.

Two of those rights are speech and contract. A law enacted by Congress punishing speech (such as the Patriot Act provision that declares to be felonious speaking about the receipt of certain search warrants) is no law at all, since the law itself violates the natural right to speak freely, which is expressly protected in the Constitution. The Framers fully understood this as they wrote in the First Amendment: "Congress shall make no laws … abridging the freedom of speech." I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment insulating it from government abridgement, and the Framers’ use of the article the reflects their unmistakable acceptance of that truism.

Similarly, a law changing the terms of a private contract is no law since it violates the natural right to make binding agreements. The Framers knew that as well. The Constitution specifically forbids the states and, by requiring due process and expressly forbidding taking property without just compensation, the federal government, from "impairing the Obligation of Contracts." This, too, is a personal natural right that pre-existed the constitutional clauses that bar the government from interfering with it.

The Constitution sets forth just 17 discrete delegated powers on matters like currency, interstate commerce, the post office, the judiciary, and national defense. The Constitution also interposed two precise brakes on all federal powers: The Ninth and Tenth Amendments together state that the powers not enumerated in the Constitution as given to the federal government are retained by the people and the States.

The whole purpose of the Constitution is, was, and has been to define the government, to impose restraints on the government, and to guarantee personal freedoms. It specifically diffused power between the States and the central government and, within the federal government itself, it separated powers among the three branches.

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