Purse and Sword

The Second Draft, Part 4

The last two essays rebuilt the chambers, the people’s house and the states’ house. This one is about what those chambers hold. A legislature is only as strong as its powers, and two of those powers tower over all the rest, because between them they are most of what a government actually is. The power of the purse, to tax and to spend. The power of the sword, to make war. Give one body both and bind them well, and you have a government. Let them slip into a single pair of hands, or float free of any hands at all, and you have the beginning of tyranny. The founders gave both to Congress, deliberately, and bound both with care. Congress has spent the last century giving both away. The second draft takes them back.

Start with the sword, because the drift there is the most flagrant. The Constitution could not be plainer: Congress, and Congress alone, declares war. The founders put the most consequential decision a nation can make, the decision to kill and be killed on a national scale, in the hands of the body closest to the people who would do the dying and the paying, precisely so that no single man could take the country to war on his own judgment. That clause is now a dead letter. The United States has fought war after war for seventy years without a declaration, on the say-so of one office, and a recent strike on Iran was launched, as I have argued elsewhere, with no vote of Congress at all. The power to make war has migrated, almost without protest, from the many to the one.

The second draft restores the plain meaning. War requires a declaration, and a declaration requires the chambers. It keeps, too, the founders’ quieter device against militarism, the rule that no appropriation to raise an army may run longer than two years, which forces every standing army to be re-justified to the people’s representatives on a short clock rather than funded into permanence and forgotten. A free country does not let one man decide, alone, to spend its blood. That was the original rule. It is worth being the rule again.

The purse has drifted just as far, and in two directions at once. The Constitution says no money may be drawn from the treasury except by appropriation made in law, and that a regular accounting of public funds be published. That is the people’s control over their own money, exercised through their representatives, and it has eroded from both ends. On one end, Congress stopped doing the job, governing by perpetual stopgap and thousand-page omnibus no member reads, and delegating the spending of vast sums to agencies that allocate as they please. On the other end, the executive has reached for the purse directly, sometimes spending what Congress never authorized, sometimes refusing to spend what it did. Both are usurpations, and it is worth saying that the second offends the principle as much as the first. A president who simply declines to spend money Congress appropriated has seized the purse no less than one who spends money it did not, however popular the cuts. The power belongs to the body that holds it, and a free people should want it there even when the man reaching for it is reaching for something they happen to like.

The second draft restores the rule in both directions. Money is drawn only by appropriation, the executive spends what is appropriated and only what is appropriated, and the accounting is published in full, every year, in the open, so a government that cannot say where the money went cannot keep drawing more. That last clause is small in the text and large in effect. A state that must publish an honest ledger is a state that can be held to it, and most of the rot I have catalogued elsewhere, the waste, the fraud, the spending no one can trace, lives in exactly the dark that an enforced public accounting would dispel.

Which brings us to the other half of the purse, the taking rather than the spending, and to the place where this constitution meets the economic argument. The second draft does not grant the power the sixteenth amendment added to the first, the power to tax incomes directly and without apportionment. It keeps instead the original rule that direct taxes be apportioned, the very rule the income tax was created to escape. This is not an oversight. It is the point. The federal government that grew to its present size grew on the income tax, on the ability to reach directly into the fruits of every person’s labor, and a government funded that way has, in practice, no natural limit, because there is always more labor to tax.

So the second draft has to answer the obvious question, the one a reader has been holding since the phrase appeared. If not the income tax, then what? The answer is the argument From Plunder to Justice has been making all along. The state is funded not from the fruits of labor but from the rent of the things no one made, the unearned value of land and natural resources that the commons series argued belongs to everyone in the first place. This is where the commons settlement stops being a philosophy and becomes a clause. A constitution that declines to tax labor and funds the government from unearned rent is the legal form of everything From Plunder to Justice argued and everything the dividend depends on. The case for the commons and the dividend was always going to need a constitutional home, a place where capturing the unearned and returning the dividend become not a proposal but the law of the land. This is that home. The purse, rebuilt, rests on the one base that does not punish a person for working.

None of this holds, though, if the loopholes that swallowed the first draft are left open in the second, and the largest of them was the commerce clause. The original gave Congress power to regulate commerce among the several states, three words that two centuries of lawyers stretched until almost nothing lay outside them, because almost everything, in a connected economy, can be said to affect interstate commerce. Through that opening came the bulk of the administrative state. The second draft closes it by returning the clause to its purpose, making commerce regular and uniform among the states, keeping trade between them free and unobstructed, rather than handing Congress a general power to regulate any activity it can connect, however faintly, to a national market. The necessary and proper clause, the other great expander, is meant to be read the same narrow way, as the authority to do what is genuinely required to carry out the enumerated powers, not as a standing license to do whatever seems useful. A constitution of enumerated powers means nothing if two of its clauses are read to grant every power not enumerated.

The purse and the sword are not two powers among many. They are the two that, concentrated, are sufficient for tyranny all on their own, the power to take everything you have and the power to send you to die. The founders split them, bound them, and lodged them in the chamber nearest the people, and the long drift of the working constitution has been the story of both slipping away, to the executive, to the agencies, to a tax with no ceiling and a war power with no vote. Clawing them back to a rebuilt Congress, closing the clauses that let them slip, and funding the whole thing from the unearned rather than from labor, is most of what it would take to make the government small enough to be free again. But powers do not migrate on their own. Something pulls them, and the thing that has pulled the purse and the sword across a century is the office that now holds far more of both than the founders would ever have tolerated. The next essay is about binding it back down.