Sidebar: Mayer's Rx
by Sherrie GossettEditor’s Note: In an interview conducted some 12 years ago with Navigator magazine (the predecessor of this publication), the author of "Completing the American Revolution" discussed specific institutional changes he would like to see enacted by a new American constitution. We asked David N. Mayer if and how his beliefs have changed on these issues.
TNI: First, regarding the Tenth Amendment, you stated a desire to “strengthen” it and “bring it to life” by adding the word “expressly,” so that it would read: “The powers not expressly 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.” You added, “Many Anti-federalist opponents of the Constitution in 1787 wanted this change, to bring the Tenth Amendment back into line with the old Articles of Confederation, which had used the word expressly in a similar provision. This change would not only strengthen federalism but also safeguard individual rights, by reaffirming the Founders’ design of a federal government of strictly limited, enumerated powers.” Is this still your view?
David Mayer: Before discussing any specific institutional changes (or the constitutional amendments needed to implement them), I’d like to comment on the basic problem with the Constitution today, which is the utter lack of respect—by the courts and by virtually all politicians, at both the national and state levels—of the text of the document and the limitations it imposes on the powers of government. If the U.S. Supreme Court and other courts fail to enforce the provisions of the Constitution as already written, we can expect no better from the courts with regard to any changes made in the text.
In fact, there’s a movement afoot to call for a new constitutional convention, to propose amendments to the Constitution. Several state legislatures have passed or are considering passing resolutions calling for this, particularly in order to propose a “balanced-budget amendment.” I think the idea of a constitutional convention is quite a horrible idea because there’s no way, practically, to limit its agenda to this particular amendment, or any other particular amendments, or even to merely proposing amendments as opposed to rewriting the whole constitution. The Constitutional Convention in Philadelphia in 1787, unfortunately, set a very dangerous precedent: called merely to propose amendments to the Articles of Confederation, it ended up scrapping the Articles altogether, of course, and proposing a whole new federal constitution. I fear that a new constitutional convention, if called today, might similarly end up being a kind of “runaway” convention —one that, if not proposing a new constitution, will propose misguided amendments that would undermine the current U.S. Constitution and many of America’s founding constitutional principles (much as did some of the amendments in the twentieth century — especially the Sixteenth Amendment, empowering Congress to levy income taxes, and the Seventeenth Amendment, authorizing popular election of U.S. Senators).
What I especially fear are amendments that might be considered a new “Bill of Rights,” which would guarantee as constitutional rights such pseudo-rights as the so-called right to a job, to health care, housing, a “fair” wage, and so on, as many collectivists have proposed, going all the back to Franklin D. Roosevelt in the 1930s. Given the kind of persons who now represent us in both houses of Congress—the typical kind of politician today, who’d also be the kind of person likely elected a delegate to a constitutional convention—I have nearly zero confidence in their ability to get it right, as the delegates at the 1787 Convention mostly did. They were, of course, a far better caliber of “public servants,” or statesmen (in the true sense of the world)—members of our truly “Greatest Generation,” the generation of Americans who fought the Revolution, men who truly valued individual freedom and responsibility as well as limited government.
Without a huge sea-change in American public opinion—a restoration of the traditional American skepticism about governmental power (instead of fairy tale about government as a benign force, a super-nanny or Santa Claus in persons’ lives, the fairy tale that the modern regulatory/welfare state has been trying to foster for the past century or so) — any sort of merely textual change in the Constitution would be mostly worthless.
In order to bring about any changes in the text of the Constitution, there would have to be sufficient political support to prompt Congress to propose amendments (the usual and preferred route for making changes) and for three-fourths of the state legislatures to ratify the amendments, as the Constitution requires. It’s not easy to amend the Constitution (thankfully so), and therefore any changes would have to have a great deal of popular support—which again, ultimately means a change in the way the American public perceives the government, sufficient to support the new, additional limits on the powers of Congress and the national government that I think are required.
That caveat aside, (and assuming there was sufficient popular support to make such a change feasible), yes indeed, I’d suggest inserting the word “expressly” into the Tenth Amendment, to help restore that amendment’s original purpose: to keep the U.S. government limited to those powers expressly enumerated in the text of the Constitution. There’s a reason why the word wasn’t included by the First Federal Congress when it proposed the Bill of Rights in 1789: that’s because among the federal government’s (or more precisely, among Congress’s) powers under the Constitution is the power granted by the Necessary and Proper Clause: the power to make all laws “necessary and proper” for carrying into effect the enumerated powers. The Necessary and Proper clause made it not only “unnecessary” (if you pardon the pun) to use the word “expressly” in the Tenth Amendment, but it also—in theory at least—denied to the federal government any so-called “implied” or “implicit” powers. Unfortunately, however, Chief Justice John Marshall—a Federalist politician who thought the U.S. government established under
the Constitution was too weak, and who therefore sought to expand its powers through interpretation—called attention to the absence of the word “expressly” as a justification for the Court’s decision, in the case of McCulloch v. Maryland in 1819, upholding the power of Congress to create the Bank of the United States (a predecessor to today’s Federal Reserve system). I regard McCulloch as “the original sin” in American constitutional law—the case that set the very dangerous precedent for the Court to expansively interpret Congress’s powers. When the Court used that precedent in the 1930s to uphold FDR’s New Deal programs, though a broad interpretation of Congress’s powers over interstate commerce and taxation (the so-called “spending power”), it gave Congress virtually unlimited powers, to create what is now the huge federal “welfare state,” made even more monstrous by the recently-passed Wall Street “bailout” legislation and the trillion-dollar “stimulus” plan that the 111th Congress is now considering. All this would have been impossible, constitutionally, if the courts had continued to interpret the Tenth Amendment as it was intended, as a real check on Congress’ power—keeping the U.S. government limited to those powers
enumerated in the Constitution.
TNI: Returning to the Navigator interview, you stated that term limits—favored by radical Whigs in the 18th century— “would lessen the corruptions of incumbency and encourage more involvement in public affairs by the general public.“ Any change on this view?
Mayer: I still think term limits are an excellent idea, at both the state and federal level, even though they’re not a panacea. They do, however, cut down on incumbent politicians’ incentives to, in effect, “buy” their constituents’ votes with programs benefitting their districts, and so indirectly help limit governmental power. I don’t buy the argument that opponents of legislative term limits, at the state level, have made, that it increases the power of lobbyists. What makes lobbyists powerful, of course, is the huge size of government, both the vast amount of money it spends and the powers it exercises over the American people. The only way to curb that power, ultimately, is to decrease the size of government.
When I look at politicians both in state capitols and in Congress, the only ones I see who are seriously interested in really cutting government are the “young Turks,” as I call them—the freshmen legislators, those who are relatively inexperienced as politicians — because the veterans, the incumbents who are constantly focused on being re-elected to another term, seem inclined only to increase government, especially with popular “pork barrel” programs to “benefit” their constituents. (I say “quote- benefit-unquote” because of course it doesn’t really benefit anyone to make them dependent on government spending programs or handouts, whether it’s individuals or companies, the recipients of “corporate welfare” programs.) The original idea behind term limits was that legislators should be drawn from the people regularly; they should not be a professional class of politicians. I think that the experience of government over the past two hundred years has proven the wisdom in that idea: professional politicians are far more dangerous today than they were in the Founders’ time. So we should have more term limits, not less.
TNI: You also previously stated that you would like to “add to the Constitution some of the features found, interestingly enough, in the Confederate Constitution of 1861: a single six-year term for the President, deletion of the ‘general welfare’ clause, a provision requiring all bills to be limited to a single subject (to discourage omnibus appropriations bills), and other provisions restricting special-interest spending.” You added, “[T]he Social Security Act would have been impossible under the Confederate Constitution.” Do you still support these changes?
Mayer: In order to seriously limit federal government spending—to take care of the problem of so-called “earmarks” and “pork barrel” programs—we need somehow to restore limits on Congress’s spending power. That means, primarily, reinvigorating the Tenth Amendment as a limit on power, as I’ve previously discussed. Some of the provisions that were in the 1861 Confederate Constitution—and which also exist today in many state constitutions—that would help reduce special-interest spending include the “single-subject” rule and a rule requiring a two-thirds super-majority (rather than a simple majority vote) to appropriate money beyond that requested by the executive, or Cabinet, departments. Either house of Congress could implement those proposals by a change in their rules concerning bills, but the only sure way to implement them (or the so-called “line-item veto,” which the Confederate Constitution also had and which many people today think would be a good idea) would be to amend the Constitution by adding these provisions as restrictions on the power of government
TNI: In your essay you state, “By presenting a new code of ethics—the morality of self-interest—[Atlas Shrugged] provides what the Founders failed to grasp, the missing element of the American Revolution: the moral justification of capitalism, and with it, of the rights of all persons.” Launching such a moral revolution sounds a bit fuzzy. How do you “have” a moral revolution? And, on the practical level, what can Objectivists and other concerned citizens do to advance this moral justification of capitalism?
Mayer: That, of course, is the $64,000 question—or as I should say, the “million-dollar” question, once inflation becomes a major problem again in the American economy. To the point, however, I’d say what ultimately is needed to bring about a “moral revolution” is to get more and more people to challenge the traditional Judeo-Christian ethical code, based as it is on altruism, or self-sacrifice, as a virtue.
One way to do that is to encourage people to read not only Atlas Shrugged but also Rand’s other works, both non-fiction and fiction, plus other writings by other Objectivist authors. I believe that we don’t need to convert the world to Objectivism, however, in order to bring about this moral revolution: it begins by getting people to challenge their assumptions— to “check their premises,” as Rand was fond of saying — and to embrace a philosophy based not on “traditional values” or supernatural teachings based on faith, but one based on objective reality and human nature, fully and fairly understood.
People shouldn’t have to read Rand, or any other Objectivist writer, to understand the basic principles of Objectivism if it truly is, as we Objectivists like to say it is, based on objective reality and human nature. It should be simple common sense. The problem is that, literally for hundreds if not thousands of years, people have been taught that what’s “moral” has nothing to do with common sense or with objective nature but rather with the teachings of theologians and ethicists.
In the eighteenth century, as part of the Enlightenment movement, there something called the “natural religion” or “common sense” movement, based on a study of nature, including human nature, as objective reality. Even a partial restoration of that “Enlightenment culture,” with or without formal Objectivism as its philosophical basis, would help overcome the old prejudices that really do stand in the way of finishing the job of the American Revolution, bringing about a social, economic, and political system based on the free market (true capitalism) and the absolute primacy of individual rights.
On the practical level, I think the best way that Objectivists (and similarly-minded radical individualists) can help do this is to have in their lives as many “John Galt moments” as possible. What do I mean by this? I’m thinking of the scene in Atlas Shrugged, near the end of the story of the Twentieth-Century Motor Company, where Galt stood up in that mass meeting and said “No!” to evil. Whether it’s making the point as frequently as possible in conversations with friends and associates or in letters to the editor, or responses to surveys or polls, or in political activism with like-minded persons — each of us ought to expressly state our rejection of a moral code based on altruism. Not only to make the vital point (as John Galt did) that we do not sanction such evil, but also to show rational, fair-minded people that there is indeed another way to live—really to live —based on a morality of rational self-interest and respect for other individuals’ rights.