How Judges Rewrote the Constitution: From Enumerated Powers to Fiscal Tyranny

From Marbury to Obamacare: The Systematic Judicial Destruction of Enumerated Powers

The Constitution ratified in 1788 created a federal government of strictly limited, enumerated powers. The Constitution we live under today grants that government essentially unlimited authority to tax, spend, and coerce states into submission.

What changed? Not the text. Not a single amendment expanded federal power over domestic policy.

What changed was judicial interpretation—a series of Supreme Court decisions that systematically rewrote the Constitution’s structural limits, transforming a government of delegated powers into one of plenary authority.

This isn’t hyperbole. This isn’t partisan rhetoric. This is constitutional fact, traceable through specific cases, demonstrable through the text, and admitted (sometimes celebrated) by the legal establishment itself.

Let me show you exactly how it happened.

What the Constitution Actually Says

Before we trace the transformation, we need to understand what was transformed. The Constitution’s design was simple and explicit:

Article I, Section 8 lists eighteen specific powers granted to Congress:

Tax and spend (for enumerated purposes)
Borrow money
Regulate commerce among the states
Establish naturalization rules
Coin money
Establish post offices
Grant patents and copyrights
Create lower federal courts
Define piracy
Declare war
Raise and support armies
Provide and maintain a navy
Make rules for military forces
Call forth militia
Organize militia
Exercise exclusive legislation over DC
Make all laws necessary and proper for executing the foregoing powers
[Plus a few other specific grants]

The Tenth Amendment made the limitation explicit:

“The powers not 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.”

The structure was clear:

Federal government: Limited to listed powers
State governments: General authority over everything else (police powers)
Balance: Vertical separation of powers protects liberty

This wasn’t hidden or ambiguous. James Madison in Federalist 45 described it explicitly:

“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.”

The Anti-Federalists feared the federal government would expand beyond these limits. The Federalists promised it wouldn’t. States ratified based on these assurances.

Then the courts systematically broke that promise.

Act I: Marbury v. Madison (1803) – The Court Claims Power Not in the Constitution

The Setup: William Marbury sued to compel delivery of his judicial commission. Congress had granted the Supreme Court original jurisdiction to issue such writs.

Chief Justice John Marshall’s Move:

Correctly noted that Article III limits Supreme Court original jurisdiction to specific cases
Correctly noted that Congress cannot expand this by statute
Then claimed the power to declare laws unconstitutional—despite this power appearing nowhere in Article III

The Irony: Marshall used strict construction (Congress can’t expand Court jurisdiction beyond constitutional text) to justify loose construction (Court can claim powers not in constitutional text).

Where in Article III does it say courts can invalidate laws?

It doesn’t.

Article III lists the judicial power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” But “extending to cases” isn’t the same as “invalidating statutes.”

The Founders’ Debate: During the Constitutional Convention, a proposal to give judges veto power over legislation was explicitly rejected. The Framers didn’t want judges making political decisions about policy.

Marshall’s Justification: He argued that judges take an oath to uphold the Constitution (true), and when a law conflicts with the Constitution, judges must choose the Constitution (reasonable), therefore courts can strike down laws (wait, how did we get there?).

The Problem: An oath to uphold the Constitution doesn’t grant power to void Congressional acts. It obligates judges to follow the Constitution in their own conduct—meaning they shouldn’t exceed their Article III authority.

Using an oath to claim authority not granted is circular reasoning.

Why This Matters: If courts can grant themselves powers through interpretation, they can grant Congress powers through interpretation. Which is exactly what they did.

Marbury established that judicial interpretation could override constitutional text. Marshall meant it as a check on Congress. His successors used it as a license to rewrite structural limits entirely.

Act II: McCulloch v. Maryland (1819) – Expanding “Necessary and Proper”

The Question: Can Congress create a national bank when “banking” isn’t among the eighteen enumerated powers?

Marshall’s Answer: Yes, under the Necessary and Proper Clause.

The Text: Article I, Section 8, Clause 18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…”

The Strict Construction: “Necessary and proper” allows Congress flexibility in how to execute enumerated powers, but doesn’t add new substantive powers. If Congress can borrow money (enumerated), it can create a bank as a means to do so.

Marshall’s Broad Construction: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Translation: If Congress has a constitutional end (any enumerated power), it can use any means that aren’t explicitly forbidden, even if those means involve substantial policy choices not enumerated.

The Expansion: This transforms Necessary and Proper from a clause allowing efficient execution of enumerated powers into one allowing creative expansion through means selection.

Combined with broad readings of substantive clauses (commerce, general welfare), this becomes second-order expansion: broad ends × broad means = nearly unlimited authority.

To Be Fair: McCulloch itself wasn’t outrageous. A national bank is reasonably related to borrowing, currency, and commerce powers. The problem was the precedent—the permission for courts to defer to Congress on what’s “necessary” and what’s “proper.”

Once courts grant deference, Congress pushes the boundaries. And courts cite the precedent to grant more deference. The ratchet only turns one direction.

Act III: United States v. Butler (1936) – The Hamiltonian Breakthrough

This is where the transformation became explicit and irreversible.

The Question: Does the General Welfare Clause grant Congress independent power to tax and spend for any purpose it deems beneficial?

The Text: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”

The Madison View (Original Understanding): “General welfare” describes the purpose of taxation—Congress may tax to fund the eighteen enumerated powers that promote general welfare. It’s a preamble to the list, not a separate grant.

Madison explained in Federalist 41:

“For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?”

The Hamilton View (Nationalist Position): “General welfare” is an independent power. Congress can tax and spend for any purpose that promotes national welfare, not just enumerated subjects.

The Stakes: If Madison is right: Federal spending limited to enumerated subjects (defense, post offices, etc.) If Hamilton is right: Federal spending unlimited—anything Congress calls “welfare” is constitutional

The Court’s Choice: Justice Roberts explicitly adopted Hamilton’s view:

“Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated…Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated…We conclude that the reading advocated by Mr. Hamilton…is the correct one.”

The Court’s Pathetic Justification:

Roberts acknowledged this makes enumeration superfluous:

“It is true that the United States is a government of enumerated powers…But the power to tax and appropriate is in addition to the legislative powers expressly granted.”

Then he handwaved the contradiction:

“While it is true that the exercise of the spending power might render nugatory the grants of specific legislative power, the Framers probably thought it wise to provide an additional safeguard.”

This is constitutional nonsense.

The Framers debated everything. They rejected proposals for general welfare power. They carefully enumerated eighteen specific grants. They added the Tenth Amendment to emphasize limitation.

Then they…what? Snuck in unlimited spending power as a “safeguard”? Created eighteen detailed enumerated powers “just in case” the general welfare clause wasn’t broad enough?

This insults the intelligence and ignores the historical record.

Madison himself said this interpretation would “render nugatory the enumeration of particular powers.” The Court admitted this consequence, then dismissed it as intentional redundancy.

The Reality: The Court chose policy over text. The New Deal was politically popular. Striking down federal spending programs would have created a crisis. So the Court rewrote the Constitution to permit them.

The Consequence: Once general welfare became an independent grant, enumeration died. If Congress can spend on anything it deems welfare, what’s left for states?

Nothing. Which brings us to…

Act IV: Helvering v. Davis (1937) – Total Deference to Congress

Butler opened the door. Helvering removed it from the hinges.

The Question: Is Social Security constitutional under the spending power?

Justice Cardozo’s Opinion:

First, he reaffirmed Butler’s Hamiltonian interpretation—spending power is broad.

Then he went further: Congress decides what constitutes “general welfare” with minimal judicial review.

“The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.”

Translation: Courts will defer to Congress on what promotes general welfare. Only “clearly wrong” or “arbitrary” choices are invalid.

The Standard in Practice: When has the Court ever found spending “clearly wrong”?

Never.

Medicare? Constitutional. Medicaid? Constitutional. Education grants? Constitutional. Housing subsidies? Constitutional. Agricultural payments? Constitutional. Everything? Constitutional.

The Tenth Amendment:

Cardozo addressed the federalism problem:

“The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively.”

This inverts the constitutional design.

The question isn’t “Is this problem national?” The question is “Is this power granted?“

If the problem’s importance determines federal authority, then everything becomes federal. Economic crisis? National. Education quality? National. Healthcare costs? National. Climate change? National.

Under this standard, the Tenth Amendment has no force. Everything is “national” if Congress says so.

The Death of Enumeration:

Combine Butler + Helvering:

General welfare grants broad spending power
Congress decides what’s “general welfare”
Courts defer to Congress
Result: Congress can spend on literally anything

What about enumerated powers?

They become a list of examples, not limitations. Historical artifacts with no constraining function.

Act V: Wickard v. Filburn (1942) – Commerce Clause Unlimited

While the spending power expanded, the Commerce Clause underwent parallel transformation.

The Question: Can Congress regulate wheat a farmer grows for his own consumption, never sold in commerce?

The Facts: Farmer Filburn grew wheat on his own land, fed it to his own livestock, never sold a kernel in interstate commerce. Congress imposed production quotas. Filburn exceeded his quota.

The Commerce Clause: “To regulate Commerce…among the several States”

Original Understanding: “Commerce” = trade, buying and selling “Among the several States” = crossing state lines Combined: Federal power to regulate trade between states

The Court’s Reasoning:

Justice Jackson: Even if Filburn’s wheat never enters commerce, it has “substantial economic effect” on interstate commerce in the aggregate.

How? If Filburn grows his own wheat, he doesn’t buy it. If all farmers did this, it would affect wheat prices nationally. Therefore, Congress can regulate Filburn’s purely local, non-commercial activity.

The Problem:

This destroys the commerce/non-commerce distinction.

Everything has aggregate effects:

Growing vegetables in your garden (affects produce markets)
Homeschooling your kids (affects education markets)
Repairing your own car (affects mechanic markets)
Reading library books (affects book sales)
Cooking at home (affects restaurant industry)

Under aggregation theory, literally any human activity can be regulated because, in the aggregate, it might affect interstate commerce.

The Limit?

There is none. Which is why in United States v. Lopez (1995), the Court finally admitted that Wickard’s logic, taken seriously, would allow Congress to regulate “marriage, divorce, and childrearing”—subjects never intended as federal.

But by then it was too late. Wickard was “settled law.”

Act VI: South Dakota v. Dole (1987) – Weaponizing the Purse

Now we see the combination of expanded spending power (Butler/Helvering) and practical leverage.

The Facts: Congress wanted a national drinking age of 21. But regulating drinking age is a state police power—clearly not enumerated in Article I, Section 8.

Solution? Condition 5% of highway funds on states adopting 21-year-old drinking age.

South Dakota’s Argument: This is commandeering. Congress can’t directly force us to raise our drinking age (not enumerated), so they’re using spending to accomplish the same result.

The Court’s Response:

Chief Justice Rehnquist: This is constitutional conditional spending, subject to limits:

Spending must be for general welfare (check—highways are welfare)
Conditions must be unambiguous (check—law is clear)
Conditions must relate to federal interest (check—drunk driving affects highways)
Conditions can’t violate other constitutional provisions (check—no rights violated)
Can’t be so coercive as to be compulsory (check—only 5%)

The Problems:

Problem 1: The “Coercion” Standard is Meaningless

The Court said 5% isn’t coercive. Why not? Because the Court said so.

What about 10%? 25%? 50%? Where’s the line?

The Court didn’t say. In practice, the line is “we know it when we see it”—which means no real limit.

Problem 2: “Relatedness” is Infinitely Expandable

How does drinking age “relate” to highway funding?

The Court said: Drunk driving happens on highways. Therefore, drinking age relates to highway safety.

But by this logic:

Driver licensing relates to highways (condition funds on state licensing standards)
Vehicle manufacturing relates to highways (condition funds on state manufacturing regulations)
Health insurance relates to highways (condition funds on states adopting Obamacare—healthier people drive safer!)
Education relates to highways (condition funds on Common Core—educated people drive better!)

Everything relates to everything. This isn’t a limit, it’s an invitation.

Problem 3: This Achieves What Direct Commandeering Cannot

In New York v. United States (1992), the Court held Congress cannot commandeer state legislatures—can’t force states to enact particular laws.

But in Dole, Congress accomplished exactly that through spending:

Can’t command: “South Dakota, raise your drinking age”
Can threaten: “Raise your drinking age or lose highway funds”
Same practical result, different mechanism

The Fiscal Trap:

Here’s how it works:

Step 1: Federal government taxes citizens of all states Step 2: Offers grants back to states with conditions Step 3: States face choice: Accept conditions or lose taxpayer money Step 4: Since citizens already paid federal taxes, refusing means double-taxation Step 5: Compliance becomes mandatory

Result: Federal control over state policy in areas not enumerated as federal powers.

Every state complied with the drinking age mandate. Not because they agreed (South Dakota sued!), but because they couldn’t afford to refuse.

This is fiscal coercion disguised as voluntary cooperation.

Act VII: NFIB v. Sebelius (2012) – The Obamacare Shell Game

This case perfectly illustrates judicial dishonesty in service of expanded federal power.

The Individual Mandate: All individuals must purchase health insurance or pay a penalty to the IRS.

Constitutional Question: What enumerated power authorizes Congress to compel commercial purchases?

The Government’s Arguments:

Argument 1: Commerce Clause Regulating health insurance is regulating interstate commerce.

Chief Justice Roberts’ Response: No. Commerce presupposes commercial activity. Compelling someone to buy insurance creates activity to regulate. This would give Congress unlimited power—could mandate purchase of anything (cars, broccoli, gym memberships).

Score: Government 0, Constitution 1

This was correct. If inactivity = commerce, there’s no limit on federal power.

Argument 2: Necessary and Proper The mandate is necessary to make guaranteed issue and community rating work (prevents adverse selection).

Roberts’ Response: No. Necessary and Proper allows means to execute enumerated powers. But we just held the Commerce Clause doesn’t authorize this, so there’s no enumerated power to execute.

Score: Government 0, Constitution 2

Also correct. Can’t bootstrap Necessary and Proper onto invalid Commerce Clause claim.

Then came the shell game.

Argument 3: Taxing Power Even if it’s not valid under Commerce Clause, it’s a tax on not having insurance.

Roberts’ Response: Sure! It’s a tax. Therefore constitutional.

Wait, what?

The Legislative Record:

President Obama (September 2009): On ABC News with George Stephanopoulos:

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”

Congressional Democrats:

Speaker Pelosi: “It’s not a tax, it’s a penalty”
Senate Majority Leader Reid: “This is a penalty for not purchasing health insurance”
Uniformly rejected “tax” characterization

Why? Because they didn’t have votes for a tax increase. The bill only passed because they claimed it wasn’t a tax.

The Statute Itself:

ACA Section 1501(b) findings:

“The individual responsibility requirement…is commercial and economic in nature, and substantially affects interstate commerce”

The law explicitly relies on Commerce Clause, never mentions taxing power.

The Anti-Injunction Act Problem:

The Anti-Injunction Act says you can’t sue to stop a tax—you must pay it first, then sue for refund.

Government’s position: The mandate is NOT a tax (for AIA purposes), so the case can proceed.

Roberts agreed: It’s not a tax for procedural purposes.

Then Roberts said: But it IS a tax for constitutional purposes.

Same provision. Same case. Two different characterizations.

The Rewrite:

Roberts acknowledged:

“The most straightforward reading of the mandate is that it commands individuals to purchase insurance.”

Then he rewrote it:

“But we need not read the statute in this way. The mandate can reasonably be read as a tax on not buying insurance.”

This is not interpretation. This is rewriting.

Courts are supposed to interpret statutes as written, not save them by recharacterizing what Congress enacted.

The Dissent (Scalia, Kennedy, Thomas, Alito):

“To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it…We have no doubt that Congress knew precisely what it was doing when it rejected the words ‘tax’ and chose instead to call the mandate a ‘penalty.'”

The Constitutional Fraud:

Congress (2009-2010): “This is NOT a tax. It’s a penalty under Commerce Clause authority.”

Administration (2010-2012): “It’s not a tax for jurisdictional purposes, but is a tax for validity purposes.”

Supreme Court (2012): “Congress didn’t call it a tax, but we will, to save the statute.”

Public (2012-present): “The Court upheld Obamacare!”

The Reality: The federal government got authority to compel commercial activity despite:

No enumerated power authorizing it
Commerce Clause explicitly not authorizing it (per Roberts)
Congress insisting it’s not a tax
Constitutional structure prohibiting this

The Principle: If courts will rewrite statutes to save them, there’s no limit to federal power. Congress can:

Pass law under unauthorized power
Deny it’s a tax (to get votes)
Let courts recharacterize later
Achieve what Constitution prohibits

This is the opposite of judicial review’s purpose. Marshall in Marbury said courts check unconstitutional acts. Roberts in NFIB rewrote the act to make it constitutional.

The Consequence: Fiscal Tyranny

Let’s trace what these cases accomplished:

Marbury (1803): Courts can rewrite constitutional structure through interpretation McCulloch (1819): “Necessary and proper” grants broad deference to Congressional means Butler (1936): General Welfare Clause grants independent spending power Helvering (1937): Congress decides what’s “general welfare,” courts defer Wickard (1942): Commerce Clause reaches any activity with aggregate effects Dole (1987): Conditional spending can coerce state compliance NFIB (2012): Courts will rewrite statutes to preserve federal power

The Combined Effect:

Federal government can:

Tax for any purpose Congress calls “general welfare” (Butler/Helvering)
Regulate any activity with aggregate economic effects (Wickard)
Use any means “necessary and proper” to these ends (McCulloch)
Condition grants to control state policy (Dole)
Get judicial rescue when it exceeds authority (NFIB)

States cannot:

Refuse federal conditions without fiscal catastrophe
Exercise reserved powers independently
Escape federal mandates
Compete with alternative approaches

This is fiscal tyranny. Not because federal mandates are harsh (though they may be), but because power has consolidated in one center that was constitutionally supposed to be divided.

The Numbers:

Federal Grants to States:

1960: $7 billion (10% of state/local revenue)
2024: $750 billion (33% of state/local revenue)

State Dependency (Federal funds as % of state revenue):

Mississippi: 43%
Louisiana: 42%
Alaska: 39%
Montana: 41%
National average: 33%

What This Means:

States with 40% federal dependency cannot resist federal conditions. Their budgets would collapse. They are structurally coerced.

The Mechanism:

Phase 1 – Grant Introduction: Federal government offers “temporary” grant for specific purpose. States accept (free money!).

Phase 2 – Dependency Creation: States expand services using federal funds, reduce own spending in that area (fungibility), build constituencies dependent on federally-funded services.

Phase 3 – Condition Expansion: Federal government adds new conditions to continued funding, often unrelated to original program.

Phase 4 – Forced Compliance: State must accept conditions or cut services to dependent population. Politically impossible to refuse.

Phase 5 – Submission: State complies with federal preferences it opposes. State legislature enacts laws federal government demands. State sovereignty surrendered. Process irreversible without fiscal crisis.

Real Example: Medicaid

1965: Created as voluntary federal-state partnership

1970s-1990s: Federal mandates expand eligible populations, states must comply to receive funds

2000s: Medicaid now 20-30% of state budgets, exit politically impossible

2010: ACA expansion—federal government threatened ALL Medicaid funds for non-compliance

Supreme Court (2012): Found this coercive (finally!)

Result: States already so dependent most expanded anyway

Current Status: States spend billions complying with federal mandates, federal regulations exceed 1,000 pages, states have no meaningful discretion

What began as “voluntary partnership” became compulsory subjugation.

The Public Deception: How Civic Education Sold the Lie

The courts rewrote the Constitution. But how did the American public come to accept—even demand—unconstitutional programs as legitimate government functions?

The answer: Systematic civic miseducation from kindergarten through adulthood.

Most Americans genuinely believe the federal government has constitutional authority to create programs like Obamacare, Social Security, federal education mandates, and countless other interventions. They believe this because they’ve been taught it their entire lives.

They are mistaken. And they would know they’re mistaken if they actually read the Constitution.

The Typical Citizen’s Understanding

Ask the average American: “Can the federal government create a national healthcare program?”

Their answer: “Yes, of course. The Constitution says the government should provide for the general welfare. Healthcare is welfare. Therefore it’s constitutional.”

Ask them: “Which of the eighteen enumerated powers in Article I, Section 8 authorizes federal healthcare regulation?”

Their response: “General welfare! It’s right there in the Constitution!”

Press further: “But if ‘general welfare’ grants unlimited power, why does the Constitution enumerate eighteen specific powers right after that phrase?”

Now they’re confused: [Pause] “Well…it just says general welfare. Healthcare promotes welfare. So it’s allowed.”

This is circular reasoning:

Constitution mentions “general welfare”
Program X promotes welfare (in their opinion)
Therefore program X is constitutional
No need to identify enumerated power

The problem: They’ve never been taught what enumeration means, why it matters, or how the constitutional structure actually works.

What K-12 Education Actually Teaches

Let me show you exactly how the public is conditioned to accept unlimited federal power:

Elementary School (Grades 3-5):

“The government helps people and keeps us safe”
“The Constitution created our government”
“The three branches work together”
Zero mention of enumeration or limits
Zero mention of state vs. federal powers
Civics reduced to three-circles diagram

The message: Government is good, government helps, government can do things.

Middle School (Grades 6-8):

“The Constitution lists the powers of government”
But no distinction between enumerated and reserved
“General welfare” mentioned as government’s purpose
Bill of Rights taught (good!)
Tenth Amendment completely ignored (deliberate omission)
Federalism reduced to “states must follow federal law”

The message: Federal government has powers, and those powers include “general welfare.”

High School (Grades 9-12):

“Congress has power over interstate commerce and general welfare”
Taught as if these are broad grants of authority
No mention of Madison vs. Hamilton debate
No mention that Madison (the drafter!) rejected this interpretation
No explanation of why powers are enumerated if one clause grants everything
Social programs presented as obviously constitutional

The message: Federal government can legislate for general welfare and commerce. This is settled. Don’t question it.

AP Government Classes (supposedly the best):

Slightly better, but still precedent-focused
Students learn current doctrine, not constitutional design
Butler/Helvering presented as settled law
Original understanding mentioned briefly, then dismissed as “originalist” or “outdated”
No critical analysis of whether precedent is correctly decided

The message: Smart people accept that federal power is broad. Only extremists question this.

The Textbook Language That Creates the Deception

Here’s what typical civics textbooks actually say:

❌ Standard Textbook (2024):

“The General Welfare Clause gives Congress broad power to tax and spend for the benefit of the nation. This includes programs like Social Security, Medicare, Medicaid, and federal education funding. Congress determines what promotes the general welfare.”

What’s wrong with this:

Treats “general welfare” as independent power grant (it’s not)
No mention this interpretation is disputed (it is)
No mention the drafter rejected this view (he did)
No mention this makes enumeration meaningless (it does)
Presents court doctrine as constitutional text (dishonest)

✓ What Honest Textbook Would Say:

“The General Welfare Clause states Congress may tax ‘to pay the Debts and provide for the common Defence and general Welfare.’ James Madison, who drafted this language, argued it describes the purpose of taxation—Congress may collect taxes to fund the eighteen enumerated powers that promote general welfare. Alexander Hamilton argued it grants independent power to spend on any national purpose. The Supreme Court adopted Hamilton’s view in United States v. Butler (1936), though this interpretation makes the careful enumeration of specific powers in Article I, Section 8 largely superfluous. Critics argue this effectively amended the Constitution without ratification, transforming limited government into government of general competence.”

See the difference?

The first version tells students what to think. The second version teaches them how to think and presents both sides.

The Critical Omissions

What students are never taught:

1. The Madison-Hamilton Debate

Madison (Constitution’s drafter) explicitly rejected broad reading
Hamilton’s view was minority position
States ratified based on Madison’s assurances of limited power
Current doctrine adopts the view the ratifying generation rejected

2. The Federalist Papers Context

Federalist 41: Madison’s explicit warning against this interpretation
Federalist 45: “Powers delegated…are few and defined”
Anti-Federalist concerns about consolidation
Federalist promises that calmed those concerns

3. The Structural Problem

Why enumerate eighteen powers if one grants everything?
What does this do to the Tenth Amendment?
How does this affect federal-state balance?
What limits remain on federal authority?

4. The Ratification Promises

States feared unlimited federal power
Federalists promised enumeration would limit it
Tenth Amendment added to make this explicit
Modern doctrine breaks these promises

5. Alternative Interpretations

Students never hear there’s a constitutionally sound alternative
Never learn that Madison’s view is textually stronger
Never asked to evaluate which interpretation makes structural sense
Never encouraged to think critically about precedent

The Result: ACA as “Obviously Constitutional”

This miseducation produces exactly what you’ve encountered: citizens who genuinely believe programs like Obamacare are proper federal functions.

The Typical Exchange:

Citizen: “Healthcare is a basic need! Of course the federal government can regulate it!”

You: “Which enumerated power in Article I, Section 8 authorizes that?”

Citizen: “General welfare! The Constitution says the government provides for general welfare!”

You: “But that’s the purpose of taxation to fund enumerated powers, not a separate grant of authority. If it granted independent power, why would the next sentence enumerate eighteen specific powers?”

Citizen: [Confused] “But…the Supreme Court said it’s constitutional.”

You: “The Supreme Court also said segregation was constitutional in Plessy v. Ferguson for 58 years. Courts can be wrong. What does the text actually say?”

Citizen: [Frustrated] “You’re just against helping people!”

Notice the pattern:

They can’t identify an enumerated power (because there isn’t one)
They retreat to “general welfare” (circular reasoning)
They appeal to authority (Supreme Court)
They make it about policy (whether healthcare is good), not authority (whether it’s constitutional)

This is the product of civic education that never taught them:

What enumeration means
Why it matters
How to read constitutional text
The difference between “Is this good policy?” and “Is this authorized?”

What Citizens Would Know If They Read the Constitution

If Americans actually read Article I, Section 8, they would immediately see the problem.

The Constitution lists these eighteen powers:

Tax and spend (to execute the enumerated powers)
Borrow money
Regulate commerce among the several states
Establish naturalization rules
Coin money and regulate its value
Fix standards of weights and measures
Establish post offices and post roads
Grant patents and copyrights
Constitute tribunals inferior to the Supreme Court
Define and punish piracies and felonies on the high seas
Declare war
Raise and support armies
Provide and maintain a navy
Make rules for military forces
Call forth militia to execute laws, suppress insurrections, repel invasions
Provide for organizing, arming, and disciplining militia
Exercise exclusive legislation over District of Columbia
Make all laws necessary and proper for executing the foregoing powers

Now ask: Which of these authorizes:

Federal healthcare mandates? (Not listed)
Social Security pensions? (Not listed)
Federal education standards? (Not listed)
Housing subsidies? (Not listed)
Agricultural price supports? (Not listed)
Unemployment insurance? (Not listed)

The answer: None of them.

Then read the Tenth Amendment:

“The powers not 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.”

This makes it even clearer: If the power isn’t on the list, it belongs to the states or the people.

Healthcare? Not on the list. Therefore, reserved to states. Education? Not on the list. Therefore, reserved to states. Pensions? Not on the list. Therefore, reserved to states.

A citizen who reads the actual Constitution would immediately recognize: “Wait, the federal government is doing things not listed here. How is that constitutional?”

But they never read it. And when they do, they’ve been conditioned to believe “general welfare” makes the enumeration meaningless.

How ACA Specifically Illustrates the Problem

Let’s use Obamacare as the concrete example of how this civic miseducation produces policy disasters.

What Citizens Believe: “The federal government has authority to regulate healthcare because:

Healthcare is important (true)
Healthcare affects everyone (true)
The Constitution says provide for general welfare (true)
Therefore federal healthcare regulation is constitutional (FALSE)”

What the Constitution Actually Authorizes:

Commerce Clause? Chief Justice Roberts in NFIB v. Sebelius (2012) correctly held: No.

The Commerce Clause allows regulation of commerce, not creation of it. Forcing someone to buy insurance creates the commerce to be regulated. This would give Congress unlimited power to mandate any purchase.

Necessary and Proper? No. This clause only allows means to execute enumerated powers. Since there’s no enumerated power to regulate healthcare, there’s no power to execute.

Taxing Power? Roberts saved the mandate by calling it a “tax” even though:

Congress explicitly said it wasn’t a tax
President Obama explicitly denied it was a tax
The statute’s findings cite Commerce Clause, not taxing power
Democrats only got votes by insisting it wasn’t a tax

This was judicial rewriting to save an unconstitutional statute.

General Welfare? This describes the purpose of taxation for enumerated activities. It’s not an independent grant to regulate healthcare.

The Constitutional Reality: Healthcare regulation is not among the eighteen enumerated powers. Therefore, under the Tenth Amendment, it’s reserved to the states.

But citizens educated in government schools genuinely believe: “Of course the federal government can do this! It’s general welfare!”

Why State-Level Healthcare Would Work Better

Here’s what most Americans don’t understand because they’ve never been taught the genius of federalism:

Federal One-Size-Fits-All Approach (Current System):

Problems:

Single regulatory scheme for 330 million people across 50 diverse states
No escape if the approach fails (it has)
No competition between different models
Special interests capture single regulatory process
Costs escalate without competitive pressure
When federal government gets it wrong, everyone suffers
No ability to experiment with alternatives

ACA Results:

Premiums doubled for many individuals
Deductibles skyrocketed
Doctor networks narrowed
Insurance companies consolidated (less competition)
Young healthy people forced to subsidize older/sicker (across entire nation)
Subsidies created dependency, now ending
Those without subsidies bore full cost of inflated premiums
No state could try alternative approach

State-Level Approach (Constitutional System):

Advantages:

50 laboratories of democracy—each state can experiment
Competition—states must attract residents and businesses
Diversity—Alaska’s needs ≠ California’s needs ≠ Vermont’s needs
Accountability—state officials answer to local voters, not DC bureaucrats
Escape valve—if your state gets it wrong, you can move
Learning—successful experiments get copied, failures stay local
Innovation—states can try creative solutions without federal permission

Practical Examples:

Massachusetts (2006):

Implemented state-level healthcare reform (RomneyCare)
Served as model for ACA
But it was state-level—other states could watch and learn
Other states could adopt if it worked, ignore if it didn’t

Vermont (2011):

Attempted single-payer system
Failed due to costs and taxes required
But failure was contained to Vermont
Other states learned without experiencing the disaster

Alaska Could:

Design system around sparse population, high costs, unique geography
Focus on telemedicine given remote communities
Leverage resource revenue to fund high-risk pools
Allow insurance across the state without federal mandates
Make different tradeoffs than California or New York

California Could:

Implement single-payer if voters want (they don’t, too expensive)
Experiment with different insurance models
Make tradeoffs suitable for dense urban population
Not force those choices on Alaska or Wyoming

Texas Could:

Emphasize free-market competition
Minimal mandates to lower premiums
High-deductible catastrophic coverage
Direct primary care models
Let results speak for themselves

Under Federalism:

Best approaches would emerge through competition
Worst approaches would be abandoned
States would copy what works
Innovation would be continuous
Citizens could choose by moving
No national policy could fail everywhere at once

Under Current System:

Federal mandates apply everywhere
No competition
No alternatives
When it fails, everyone suffers
No escape
No learning

The Question Citizens Should Ask

If civic education taught constitutional structure properly, every American would ask:

“If the federal government can regulate healthcare because it ‘promotes general welfare,’ what CAN’T it regulate?”

Mandatory exercise programs? (Promotes welfare through health)
Dietary restrictions? (Promotes welfare through nutrition)
Sleep requirements? (Promotes welfare through rest)
Marriage mandates? (Promotes welfare through stable families)
Childbearing quotas? (Promotes welfare through population balance)
Career assignments? (Promotes welfare through efficient labor allocation)

There is no limiting principle.

If “general welfare” grants plenary power, the federal government can regulate anything it claims promotes welfare.

This is unlimited government.

This is exactly what the Framers designed the Constitution to prevent.

This is what citizens would understand if they read the actual Constitution instead of relying on what government schools tell them it says.

The Deliberate Nature of the Deception

This isn’t accidental. The omission of enumeration from civic education is systematic and deliberate.

Evidence:

1. National Education Standards: Common Core and other federal education initiatives (themselves unconstitutional—education isn’t enumerated) emphasize:

“Active citizenship” (voting, civic participation)
“Understanding government functions” (what agencies do)
NOT “Constitutional limits on government”
NOT “Enumerated vs. reserved powers”
NOT “How to identify unconstitutional laws”

2. Teacher Training: Education schools teach future teachers:

“Civic engagement”
“Democratic participation”
NOT “Constitutional structure”
NOT “Federalism principles”
NOT “How to read primary sources”

3. Textbook Selection: State education boards approve textbooks that:

Present federal programs as constitutional
Cite Supreme Court doctrine as constitutional text
Omit founding-era debates
Treat enumeration as historical curiosity
Emphasize policy outcomes over constitutional authority

4. Testing Emphasis: Standardized tests ask:

“What services does the federal government provide?”
“How do federal agencies help citizens?”
NOT “Is this federal program authorized by the Constitution?”
NOT “Which enumerated power permits this?”

The Result: Generations of citizens who:

Believe federal power is essentially unlimited
Think “general welfare” means “anything good”
Never learned to identify enumerated powers
Cannot distinguish policy from authority
Demand unconstitutional programs
Reject constitutional limits as “extreme”

This serves the political class perfectly.

Citizens who don’t understand constitutional limits won’t object when government exceeds them. Citizens who believe “general welfare” authorizes everything will support expanded federal programs. Citizens who never learned federalism won’t demand state-level solutions.

The deception is working exactly as designed.

How Legal Academia Makes It Permanent

The courts created this system. Civic education conditioned the public to accept it. Legal academia ensures it can never be dismantled.

Law School Curriculum:

Week 1-2: Federalism

Brief mention of Madison vs. Hamilton debate
“Madison lost, Hamilton won” presented as historical fact
Butler/Helvering presented as settled precedent
Students taught to accept broad spending power as “the law”

Week 3-4: Commerce Clause

Wickard presented as correct interpretation
Aggregation principle accepted without question
Lopez/Morrison presented as narrow exceptions, not reversals

Week 5-6: Necessary and Proper

McCulloch — broad deference to Congress
Combined with broad substantive powers = unlimited authority

Week 7-8: Tenth Amendment

Darby — “truism” with no enforceable content
Anti-commandeering as only remaining limit
Federalism portrayed as historical relic

The Message: “The federal government has broad power to legislate for general welfare and regulate interstate commerce. Enumeration is a formality. The Tenth Amendment doesn’t really limit anything. This is settled law. Accept it and move on.”

The Stare Decisis Trap:

Students who question Butler or Helvering are told:

“You’re ignoring precedent”
“We don’t live in 1789 anymore”
“The living Constitution has evolved”
“Originalism is extremism”

Career advancement requires accepting establishment view.

Bar exams test current doctrine, not constitutional theory. Students must regurgitate Butler/Helvering to pass. Critical analysis is penalized. Conformity is rewarded.

Result: Generations of lawyers trained to believe federal power is essentially unlimited. They become judges, professors, legislators—perpetuating the cycle.

The Practical Consequences: Healthcare Costs

This isn’t just theoretical. Let me show you the real-world harm from unconstitutional programs.

The Obamacare Example:

The Constitutional Problem:

No enumerated power over healthcare (not listed in Art. I, §8)
Not interstate commerce (per Roberts in NFIB)
Only upheld by recharacterizing as “tax” despite Congress denying this

The Policy Consequences:

Mandates increased costs:

Guaranteed issue (must cover pre-existing conditions)
Community rating (can’t charge based on risk)
Essential health benefits (must cover specific services)
Result: Premiums doubled for many individuals

Subsidies created dependency:

Tax credits for those under 400% poverty line
Shielded recipients from true costs
Those above threshold paid full inflated price

Now subsidies ending: People who received subsidies for 10+ years now seeing what unsubsidized individuals saw all along—massively inflated premiums caused by federal mandates.

If States Had Retained Authority:

Alaska could have one approach
California another
Texas another
Best approaches would succeed and be copied
Worst approaches would fail but only affect one state
Competition would drive down costs

Under Federal One-Size-Fits-All:

Single approach mandated nationally
No escape, no alternatives
When they get it wrong (they did), everyone suffers
No competitive pressure to improve
Costs escalate without accountability

This is why enumeration matters practically.

Limited federal power = limited federal mistakes State sovereignty = 50 laboratories of democracy Federal overreach = national failure with no escape

What The Constitution Actually Became

The Constitution of 1788:

Federal government: 18 enumerated powers
State governments: General police powers
Tenth Amendment: Powers not delegated are reserved
Balance: Vertical separation protects liberty

The Constitution as Interpreted by Courts:

Federal government: Plenary power over anything affecting “general welfare” or “interstate commerce”
State governments: Administrative subdivisions implementing federal policy
Tenth Amendment: “Truism” with no enforceable content
Balance: Destroyed through judicial interpretation

This is not the same document.

The text says one thing. The doctrine implements another. This is constitutional fraud—not through formal amendment (which requires ratification), but through judicial reinterpretation (which requires nothing but five votes).

The Bait-and-Switch:

1788 – The Deal:

Federalists: “Federal government will be limited to enumerated powers”
Anti-Federalists: “We fear it will expand”
Federalists: “We’ll add the Tenth Amendment to make it explicit”
States: “Okay, we ratify based on these assurances”

1936-2012 – The Betrayal:

Courts: “General welfare grants plenary spending power”
Courts: “Commerce includes anything with aggregate effects”
Courts: “Tenth Amendment is just a truism”
Courts: “We’ll rewrite statutes to preserve federal power”

The Contract Was Changed Without Consent.

States agreed to limited federal government. Courts delivered unlimited federal government. The ratifying generation was promised enumeration. Their descendants got consolidation.

This is why originalism matters. Not nostalgia for 1789, but fidelity to the deal that created the Union.

Can This Be Fixed?

Option 1: Judicial Reversal

Requirements:

Justices committed to original meaning
Willing to overturn Butler, Helvering, Wickard
Accept massive disruption to restore Constitution
Resist political pressure

Likelihood: Low without major court composition change

Obstacles:

Stare decisis (precedent pressure)
Reliance interests (trillions in federal programs)
Legal establishment opposition
Public misunderstanding of enumeration

But: Court reversed Plessy in Brown (1954). Court reversed Lochner-era cases in 1937. Court reversed Roe in Dobbs (2022).

Precedent can be overturned when it’s demonstrably wrong.

Applying Dobbs Framework to Butler:

Dobbs overruled Roe based on:

No textual support for abortion right
No historical support
Unworkable framework
Poor reasoning
Violated federalism (removed state authority)

Every factor applies to Butler:

No textual support for independent spending power
No historical support (Madison explicitly rejected it)
Unworkable framework (no enforceable limit)
Poor reasoning (“abundance of caution” is nonsense)
Violated federalism (destroyed enumeration)

If Roe deserved overruling on these grounds, so does Butler.

Option 2: Constitutional Amendment

Proposed Text:

“The power of Congress to provide for the general welfare shall extend only to those purposes enumerated in this Constitution. The phrase ‘general welfare’ shall not be construed as a grant of power independent from the enumerated powers herein.”

Process:

2/3 of both houses of Congress, OR
2/3 of state legislatures call convention
Ratification by 3/4 of states

Likelihood: Extremely low

Obstacles:

Congress won’t vote to limit itself
States dependent on federal funds won’t ratify
Political establishment benefits from current system

Alternative: Article V convention called by states, bypassing Congress

Option 3: State Fiscal Independence

Strategy: States systematically reducing dependence on federal funds

Steps:

Audit all federal funds received and conditions attached
Prioritize programs with most onerous conditions
Develop state resources (Alaska: minerals, oil, gas)
Build state revenue to replace federal grants
Reject federal funds, eliminate conditions
Coordinate with other states for critical mass

Advantages:

Avoids constitutional confrontation
Gradual transition reduces disruption
Politically more feasible than nullification
Sustainable long-term

Example: State receives $500M federal education funds requiring Common Core, federal testing, etc. State develops resources to generate $500M in revenue. State rejects federal funds. State controls own education policy.

Option 4: Public Education Campaign

The Foundation: Most Americans don’t know:

What enumeration means
Why it matters
How courts changed it
What they lost

The Strategy:

Teach actual constitutional structure
Show Madison vs. Hamilton debate
Trace case-by-case transformation
Demonstrate practical consequences
Build popular demand for reform

The Goal: Create political will for judicial appointments, constitutional amendment, or state resistance

Conclusion: The Constitution You Think You Have vs. The One You Actually Have

You think the federal government:

Is limited to enumerated powers
Can only act in specified areas
Must respect state sovereignty
Operates under constitutional constraints

The federal government actually:

Has plenary power to spend for “general welfare”
Can regulate anything with aggregate economic effects
Can coerce states through conditional grants
Gets judicial rescue when it exceeds authority

You think the Tenth Amendment reserves powers to states.

The courts say it’s a “truism” with no enforceable content.

You think enumeration limits federal authority.

The courts say it’s “abundance of caution”—redundant and meaningless.

This is the greatest bait-and-switch in American history.

The Constitution was sold as a framework of limited government. The courts transformed it into a license for unlimited government.

The states ratified a compact of enumerated powers. The courts delivered a consolidated empire of fiscal coercion.

The Founders promised federalism would protect liberty. The courts destroyed federalism through interpretation.

And legal academia ensures this can never be questioned, let alone reversed.

What You Can Do

1. Learn the actual Constitution Read Article I, Section 8. Count the enumerated powers (18). Ask yourself: If “general welfare” grants unlimited authority, why enumerate anything?

2. Read the Founders Federalist 41, 45, 46 (Madison on limits) Madison’s letters on general welfare Ratification debates (promises of limited government)

3. Question the cases Butler’s reasoning is demonstrably poor Helvering’s deference is constitutionally unjustified Wickard’s aggregation destroys commerce/non-commerce distinction NFIB’s rewrite is judicial fraud

4. Teach others Most people don’t know this history Show them the transformation Explain why it matters Build understanding of enumeration

5. Demand better from elected officials Ask: “Which enumerated power authorizes this?” Don’t accept “general welfare” as an answer Require constitutional justification Support candidates who understand limits

6. Support originalist judges Judges willing to overturn bad precedent Judges committed to actual constitutional text Judges who prioritize structure over policy Judges who understand enumeration matters

7. Consider state-level action Support resource development to reduce federal dependency Oppose acceptance of conditional federal grants Build state fiscal independence Create alternative to federal coercion

The Constitution isn’t what you think it is.

The courts rewrote it.

The law schools made it permanent.

The question is: Will you accept the fraud, or demand the Constitution you were promised?

If you found this analysis valuable, please share it. Most Americans have no idea their Constitution was rewritten by judges. They deserve to know.

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