“A corrupt society has many laws,” observed the Roman historian Tacitus.
The Founding Fathers knew this aphorism, and their work reflects it, from the Articles of Confederation to the Federalist to the Tenth Amendment. They designed these documents to save this country from the plague of “many laws.” And the inaugural addresses of nearly all the first 15 presidents assured their countrymen that the federal government would usurp no powers not assigned to it in the Constitution.
All this changed with the accession of our 16th president, Abraham Lincoln, now regarded by nearly everyone as the very model of a “great” president—in other words, a chief executive uninhibited by the mere letter of the Constitution.
By now time has wiped away the old scruples, so much so that we tend to forget that Thomas Jefferson seriously doubted that he had the authority to make the Louisiana Purchase (and by now it may be too late to set it right; what’s done is done), and even Lincoln himself doubted his power to free any slave. (A plausible wartime pretext—punishing Southern rebels—had to be found; and this, too, may defy correction.)
How many American politicians now bother asking themselves whether the Constitution authorizes a given act? Did Barack Obama give a moment’s thought to this when considering his national-healthcare scheme? ...