Fedzilla vs. the Constitution

Fedzilla vs. the Constitution traces the largely successful effort to turn a federal government given limited, enumerated tasks by the Constitution into a large and powerful monolith. Issue by issue, the book shows how it was done, starting with the administration of George Washington and continuing through the Obama Administration. The book argues that Washington's Secretary of the Treasury, Alexander Hamilton, was disingenuous in supporting ratification of the Constitution as setting limits on federal power, then turning around once in office to expand the federal government. Hamilton is called the Father of Crony Capitalism for creating the first Bank of the United States and the Father of Bailouts for his role in the Panic of 1792. The author challenges prevailing legal thinking with criticisms of venerable Supreme Court decisions, starting with those of Chief Justice John Marshall, and continuing up to those of Chief Justice John Roberts. After tracing the "tricks of the trade" that federal power players have used to expand the government, the book offers arguments for why we need to put Fedzilla on a constitutional weight-loss diet. Its remoteness from the people and undemocratic composition, as compared to the states, and its ability to damage the entire nation with its bungling, as compared to initiatives by only one state, are among the reasons for shrinking Fedzilla back into its constitutional britches. The third part of the book offers "recipes" for a constitutional weight-loss diet.

In 1788, the Constitution of the United States created a federal government of limited powers. Everyone agreed that any power not on the list of 18 “enumerated” powers was retained solely by the states or the people. Yet, today, federal bureaucrats decide what our children should eat for lunch at school, the kind of pajamas they wear, the type of bulbs we screw into lamps and more. Most importantly, Washington decides how much of the money we earn we deserve to keep and how much it believes it can put to better use. The Constitution has been turned upside down. The federal government has practically all the power and the states are left with only the occasional bones thrown to them from Washington. How did this happen? Fedzilla vs. the Constitution explains how a government given limited powers mutated into the behemoth it is today. The book also explains why limited government at the federal level is still needed and is still what the Constitution requires. It contains “recipes” for Fedzilla to lose weight. Fedzilla vs. the Constitution examines, issue by issue, how the federal government began to tug on its constitutional restraints. It started almost immediately. In 1791, Alexander Hamilton urged President Washington to sign an act of Congress creating the Bank of the United States. Washington doubted its constitutionality and sought advice. Secretary of State Thomas Jefferson and Attorney General Edmund Randolph concluded that incorporating a bank did not fall under any of the enumerated powers conferred upon Congress. Hamilton won the argument about the Bank by using an early version of Butterfly Effect logic. When a butterfly flaps its wings, it creates tiny changes in the atmosphere that may ultimately lead to a tornado. The theory is that an initial incident can start a chain of events that has a quite different outcome. The Butterfly Effect is a device often used in science fiction, particularly in stories about time travel, but its application to constitutional law is destructive of the very concept of limited government. In promoting the Bank, Hamilton also became our first crony capitalist. The Bank of the United States, which was controlled by private investors, received as deposits all the revenue of the federal government. The Bank therefore had a big competitive edge over state-chartered banks. Hamilton was also the father of modern bailouts, because he had to use government resources to deal with the Panic of 1792, which was triggered by speculation in the securities of the Bank. The precedent set by the creation of Hamilton’s Bank has led to modern government-sponsored enterprises, like Fannie Mae and Freddie Mac, to national banks that are too big to fail and to their massive bailouts. Butterfly Effect logic would emerge again during the New Deal to justify another expansion of federal power. The Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Commerce that was internal to a single state was to be regulated only by that state. During the New Deal, the Supreme Court, after initially resisting, adopted Butterfly Effect logic to get around that distinction. The book also deals with the constitutional history of federal spending. Congress every year spends hundreds of billions for projects that have nothing to do with any of its enumerated powers. It wasn’t always that way. President Madison vetoed the Bonus Bill of 1817, an aptly named bundle of logrolling deals that earmarked funds for local interests. But subsequent Congresses persisted. Madison’s view of a federal government that focused on “the great and national” issues succumbed to Tip O’Neill’s view that “all politics is local.” The Supreme Court was no help. It deferred to our legislators’ craving for earmarks and denied taxpayers the standing to challenge them in court.

John Krill is an appellate and constitutional lawyer who practices law with one of the largest international law firms in the world. He has argued constitutional cases in federal and state courts, as well as in the U.S. Supreme Court. He holds a J.D. from Harvard Law School and a B.A. in Classics from Lawrence University.