01/27/2016 09:57 am ET Updated Jan 27, 2017

Don't Amend the Constitution, Enforce It

The federal government has burst the confines of the Constitution, and we the people must do something about it. That's the premise of recent calls by Senator Marco Rubio and Texas Governor Greg Abbott for an Article V amendments convention, at which they intend to propose constitutional amendments to limit the federal government's size and scope. While their specific proposals differ, Rubio and Abbott both believe that the federal government has been transformed from a carefully limited entity with "few and defined" powers into an unchecked, unaccountable, and unconstrained leviathan that voraciously consumes tax dollars, exercises powers constitutionally reserved to the states, and menaces individual freedom.

While well-intended, the proposed convention is a long shot that may well distract proponents of constitutionally limited government from a more modest -- but equally potent -- response to the problem of overweening government: a properly engaged judiciary. For decades, federal judges, following the Supreme Court's explicit instructions, have systematically abdicated their responsibility to ensure that the U.S. government only exercises constitutionally authorized powers. Those who support the idea of a constitutional convention should ask themselves two simple questions: Has the judiciary consistently enforced the government-limiting terms of our existing Constitution, and if not, why should we suppose it will do any better with any new amendments?

It is undeniable that the Constitution's limits on federal power have been almost completely drained of substance. Consider the first sentence of Article I: "All legislative Powers herein granted shall be vested in a Congress..." Most of the law we live under today is written not by our elected representatives but by unelected bureaucrats at administrative agencies, who draft and enforce hundreds of thousands of regulations that control what Americans can and cannot do. Reading the terse list of seventeen specific "powers" enumerated in Article I, Section 8 gives scant indication of the authority that the federal government currently claims over our food, land, water, jobs, finances, health care, transportation, and innumerable other areas of American life. Not even the famous six-toed cats at the Ernest Hemingway Home and Museum in Key West, Florida are free of the federal government's regulatory reach--in 2012, a federal court of appeals held that the Department of Agriculture had the power, under the Commerce Clause, to regulate the cats' living conditions.

Importantly, the Framers did not believe that government officials could be trusted to act as the constitutional judges of the scope of their own powers -- it is for that very reason that they established an independent judiciary. In Federalist 78, Alexander Hamilton argued that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice." Absent a federal judiciary committed to "inflexible and uniform" enforcement of the Constitution, Hamilton recognized that "all the reservations of particular rights or privileges would amount to nothing."

One of the primary reasons that the Constitution's limits on government power all too often "amount to nothing" today is that the judiciary has abdicated its responsibility to enforce those limits. The Supreme Court has held that courts must defer to agency interpretations of broadly worded congressional statutes unless those interpretations are "unreasonable," perpetuating a status quo of rule by administrative fiat. The Court has created a default standard of judicial review--the so-called "rational-basis test"--that gives confers an effectively irrebuttable presumption of constitutionality upon most governmental burdens on Americans' pursuit of happiness. The Court has effectively deprived the Fifth Amendment's requirement that eminent domain only be exercised to seize property for a "public use" of any force, holding that the government may condemn private property and transfer it to other private parties for purposes of "economic development." Finally, the Court not once but twice rewrote the Affordable Care Act--the largest expansion of federal power since the New Deal -- in order to preserve it.

These decisions are not the product of any failure on the part of the Framers to specify the limits of government power. They are a product of a judicial posture (often wrongly praised as "judicial restraint") that is fundamentally flawed -- one that holds that judges must generally defer to assertions of government power unless the government's actions are clearly and unambiguously unconstitutional. Government will remain unchecked and unbalanced until judges reject such unwarranted judicial deference and embrace judicial engagement -- conscientious, impartial judicial inquiry into whether the government is pursuing constitutionally proper ends through means that are necessary to accomplish those ends.

Rubio and Abbott are correct that we have a national government that cannot plausibly be reconciled with the Framers' Constitution. But the current size and scope of the federal government is proof positive that even the most carefully drafted textual limits on government power are but empty promises if the institution charged with determining "what the law is" fails to perform its constitutional function. If we seek a "government of laws, and not of men," we must encourage judges to consistently enforce the law of the land and appoint judges with a demonstrated commitment to doing so.