Those who follow the Supreme Court are aware of certain infamous vagaries in the Constitution such as the Preamble and the “necessary and proper” clause. Reading the Constitution, it’s not immediately clear that these things would have been such great problems. However, the stretching nature of legislatures over the years has brought them into dispute.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

This incredibly wide-ranging sentence is the Preamble to the Constitution. Is it necessary? What does it mean? Does it hold any real weight? The clause establishes that the Constitution is there for such things as “insuring domestic tranquility” and “promoting the general welfare.” Does this mean that the legislature is empowered to do what it pleases to promote what it considers to be the general welfare? Obviously, this is an ongoing debate in legal interpretation circles in terms of strict construction vs. loose construction. Conservatives, unsurprisingly, are more attuned to strict construction, believing the Constitution is a strict outline for the legislature, and anything not expressly allowed is, well, not allowed.

This problem is only compounded by Article I: "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." All laws necessary and proper? Who decides what’s necessary and proper?

The short answer to both of these questions, throughout the history of the United States, is that the Supreme Court decides what they mean. To put the Supreme Court in cynical terms: this is a body of nine unelected people who meet in secret and serve life appointments. Lovers of democracy everywhere should be quite against the historical expansion of the Supreme Court’s power.

Anyone who’s taken an introductory political science class is familiar with the Federalist Papers, a passionate advocacy of the Constitution written during the time of debate over its ratification. Less well known are the Anti-Federalist Papers, a collection of documents written by (small-r) republicans concerned over the power that the new central government would wield.

As it has turned out, the Anti-Federalists were right. They were concerned about the new central government being supreme over state authority, the sweeping power that the Presidency would have, and the elitism and disconnect with the people that members of the House of Representatives would feel (and this was back when the House numbered 1 rep for every thirty thousand… which has now ballooned to one rep for every 500,000!).

Yet another concern that they had that turned out to be prescient was on the exact question of the judiciary. Brutus’ twelfth essay, published in February 1788, declared exactly that the courts’ power would allow the legislature to exert its influence anywhere it desired.

“[The Constitution] will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal.

“The courts, therefore, will establish this as a principle in expounding the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.”

What hath we wrought? It’s exactly as we knew it would happen.