Constitutional Incorporation

As they sat down to draft a Constitution, the Framers had before them a basic problem: how to design a government strong enough to secure our rights yet not so strong as to violate those rights in the process. To accomplish that end, the Framers employed those devices, of which we are all familiar. The division of powers between the federal, state and local governments, the separation of powers among the three branches of the federal government. The provision for periodic elections and for judicial review, the addition, two years later, of a bill of rights, and so forth.
The most important device was the simple limitation of power granted, known as the doctrine of enumerated powers. As the Tenth Amendment makes explicit, the federal government has only those powers that have been delegated to it by the people, as enumerated in the Constitution. If a power is not found in the document, the federal government does not have it. Any such power belongs then to the people. The basic issue of political legitimacy is no more intricate than that. At the state and local level, involving the power of government over the individual, the issue is the same. Today, of course, that basic doctrine of enumerated powers, the centerpiece of the Constitution, has been all but forgotten, as governments at all levels exercise powers nowhere found in their authorizing charters. Those powers are illegitimate, plain and simple. Yet today they are everywhere, running roughshod over our rights, including our property rights. How did we get to this state of affairs?

 Limited, Constitutional Government - Its Demise In Modern Times

The answer is not all that complex. In short, around the turn of the century certain elements of our society began asking government to solve all manner of socio-economic problems, whether or not WE THE PEOPLE had authorized it to do so through the Constitution. The political branches responded. In time, the courts stepped aside, rewriting the Constitution in the process, not literally but through reinterpretation alone.

This took place over a somewhat brief period, during the 1930s, though the mental groundwork had been in order well before. Still, the original intent did hold, more or less, for our first 150 years, during which government was largely restrained. Following a long period of industrialization and urbanization after the Civil War, however, we started changing our view of government. No longer did we think of it as a 'necessary evil,' requiring restraint, as the Founders had done. Instead, the Progressive Era saw government as an engine of good, a tool for solving the problems of present life. Thus, we began asking and expecting government to do things for us, to solve our problems, which too many politicians of the era were very willing to do.

In the way of their exercising that power, however, stood a Constitution for limited government, which the Supreme Court continued to enforce, albeit, with intensifying skepticism. By the mid-1930s things were coming to a head as one New Deal program after another went down in constitutional flames. Faced with a body of recalcitrant jurists, Roosevelt threatened to pack the Court with six additional members, his infamous Court-packing scheme. Not even Congress would go along with that. Notwithstanding, the Court, now on notice, got the message and started stepping aside, finding powers never before found in the Constitution, ignoring rights plainly there. Under the reinterpreted Constitution, its doctrine of enumerated powers effectively eviscerated, the modern welfare state poured through, giving us the massive redistributive and regulatory programs we know, and some love, while constituionalist foundationalists, detest and resent, today. Many of the programs that run roughshod over the rights of property owners today are illegitimate, simply because done without any constitutional authority, neither federal nor state authority. What is more, not only do those programs proceed without constitutional authority but they violate explicit constitutional guarantees, in particular, the Fifth Amendment's guarantee that private property not be taken without just compensation for the owner.