David Brearly Speaks on Limitations to Government

“I spent much of my time at our Constitutional Convention reflecting on the events that led us to adopting a Constitution that tried to balance the need for: a central organization that could overcome the disorganization and chaos that resulted from totally independent States trying to act in concert, with appropriate constitutional limitations on the central government that would prevent erosion of individual and State liberties.  As New Jersey Supreme Court Justice, I was the first to overturn a conviction due to the unconstitutionality of a law under the Constitution of New Jersey.  No one believes more in the importance of a strong and well defined Constitution than I.  As I traveled and observed the United States of today, it seems that there is much confusion about the roles that we intended for various governments .

It would seem to me that it is important to make it clear what we envision that the Federal Government should not do,” said Brearly.  “For example, it seems that today the states are given little choice about a number of matters, ranging from schools to roads, which should be left to the states’ decisions rather than the Federal Government.  Most of these are presently accomplished through a process of coercion that denies states (that do not follow the dictates of the Federal Government) some portion of Federal aid.  I question whether the Federal government should be funding such items at all if there are disagreements between the states, and legislation to require a particular solution cannot be passed.  I ask, ‘Is it right for the Federal Government to dictate rules via subsidizing particular behaviors that they are unable or unwilling to make law – and provide commensurate funding?’  Clearly it is in the interest of the nation to incentivize some behaviors and discourage others, however there must be some boundaries.  What are they?”

“Similarly, there are numerous instances where the Federal Government dictates, through legislation, certain behaviors by States that result in costs which are not paid for the Federal Government.  It was never our intention that the Federal Government has such control over the State’s priorities.”

“While noble in motive, there are a number of other items in which the Federal Government has become involved that clearly should be left to the private community.  Examples are protection of endangered species, sponsoring of the arts, charities, and similar endeavors if they have no proven impact on the nation as a whole.  Such efforts, with the information technology of today, can be easily advertized and, it there are enough interested constituents, they can be funded by those interested parties.  The Federal Government does have a responsibility to provide accurate and unbiased information to all citizens which helps them to make intelligent choices about which of many organizations they wish to support.”

“Much of this behavior by the Federal Government has come about as a result of Members of Congress attempting to ingratiate themselves to some portion of their constituents so as to get reelected – a situation we never foresaw.  When we previously met, we believed that serving the nation would be such a burden that few would be able to devote the time and energy and that most of those would, like our first president, take the opportunity to return to their true profession as soon as possible.  I propose that we discuss this in more detail as we progress with our deliberations.  In any case, we need to make it clear that our intention was, and is, to limit the actions of the Federal Government to the absolute minimum necessary to achieve the functions we discussed.”

“As a general rule of thumb, individual freedom should take precedence over any government action not specifically laid out in the State or Federal Constitution or laws, and State freedom should take precedence in any case not specifically delineated in the US Constitution or laws.”