The other day America celebrated the Fourth of July, the day in which we celebrate our declaring ourselves independent from Britain. Throughout the day I could smell barbecues and hear people having parties in their yards. Then during the evening, as I lay in bed, I could hear the sound, and see the colored flashes of lights from the people setting off fireworks. As I lay there I wondered to myself do these people really understand what this day signifies, and if so, how can they be celebrating it?
Awhile back someone told me that I’m always complaining about how screwed up our country is but I don’t give any specifics. I don’t, really? I wonder, has this person read all my articles or are they just saying that because of what they hear me say? I’m not saying that there aren’t other places that are better off than America, and I’m not saying there aren’t. As a friend of mine said on Facebook yesterday, America is probably still the healthiest patient on the cancer ward. Yeah, we may be better off than many other places, but we are far from healthy.
So you want specifics? Well let me get specific.
First, let me begin by asking a question. Do you even know what our Constitution is? I don’t want some generic answer filled with generalities, you want specifics from me, I’m asking for specifics from you. What is our Constitution?
Can’t answer? Don’t know? Didn’t think so.
Go to Merriam Webster’s Dictionary and you will see that the root word, constitute, means: to make up or form something; to establish or create. So a constitution is the act of creating a government. As Thomas Paine wrote in his booklet The Rights of Man, “A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organised, the powers it shall have, the mode of elections, the duration of Parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in fine, everything that relates to the complete organisation of a civil government, and the principles on which it shall act, and by which it shall be bound.”
By creating a body, a government, this is to represent the people, we ceded certain powers we held under natural law to the government to act on our behalf…for certain specific purposes. In that way it is much like a power of attorney. A power of attorney is a legal document authorizing someone else to act on your behalf in legal matters. Powers of attorney can be general, that is unlimited, or specific, granted for certain purposes. In our discussion if our Constitution were a power of attorney it would be specific, as the Constitution clearly spells out what powers this government shall wield.
I honestly don’t care what you may think or feel, as we are not dealing with feelings, we are dealing with facts; our government cannot enact laws that a majority of the people support, or that they feel are in our best interest, when those laws exceed the powers granted them by the Constitution. They simply cannot legally do so. If our government does so it has violated the law and has become criminal in its actions. It is that simple.
In Federalist 78 Alexander Hamilton said as much, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
So it does not matter if the government feels that what it is doing is in our best interests, or if it acts upon the sentiments of a majority of the people, if its acts violate the Constitution, they are invalid…null and void, and we are not bound to obey.
You may not like that, but that’s the way it is. In his farewell address George Washington told us that we can modify the Constitution, but for our government to usurp powers was the means by which free governments are destroyed, “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
So let’s take a moment to sum up what I have just said. Our government was created by an act of the people; a constitution was written which described how it was to be organized and the powers it would have. It was decided that when a government acted outside the powers granted it by the people it was usurpation, and its acts were to be considered null and void. Sound about right? Good, let’s continue.
I suppose then the next logical step in this discussion is to define what powers we granted our government to wield on our behalf. If you at least understand that the power of making law falls within the purview of the legislature, the Congress, then at least you are slightly ahead of the game. If not, then you just learned something. The powers granted Congress are found in Article 1, Section 8 of the Constitution, and they are as follows:
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
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.
That’s it, the whole ball of wax. If a power is not named in that list, our government does not have it. And you can cry and moan that you think government should have that power, it does not matter, until our Constitution is AMENDED to grant government that power, it cannot legally exercise it.
Let’s take a look at some of those powers.
One of the most widely argued clause of the Constitution is the second power granted Congress, the power to regulate commerce. Some argue that the phrase regulate commerce merely means to ‘make regular’ while others say it grants the government a whole slew of powers to govern over the production, sale, and consumption of goods. Many of these questions have been settled by the Supreme Court, but that alone does not answer the question as to what regulate commerce actually means. This is because there is a technical difference between how the Courts interpret, or construct when forming their rulings.
Keith Whittington is a professor of politics at Princeton University and he said the following about the difference between interpretation and construction, “Constitutional interpretation is essentially legalistic, but constitutional construction is essentially political. Its precondition is that parts of the constitutional text have no discoverable meaning. Although the clauses and structures that make up the text cannot be simply empty of meaning, for they are clearly recognizable as language, the meaning that they convey may be so broad and underdetermined as to be incapable of faithful reduction to legal rules…”
What he is saying is that the Court, when a clear definition of a word, or phrase, does not exist, that they have to find how it was used in context and then, as then as he later says, make “…an act of creativity beyond interpretation…” This is construction. So when the Court hands down a ruling it often is based upon the use of their interpretation of what the words and phrases mean, and may, in all reality, be far different from what the Founders intended. We may never know, but if their rulings are faulty, then laws such as those which require us to buy health insurance, Obamacare, may be unconstitutional.
It is my belief, based upon what I have read, that the government may enact laws which regulate the health care industry so as to ensure that people have access to affordable health care and health care insurance. But it MAY NOT force us to purchase any product. That is not part of a free market society where the people are free to spend their money as they please. On the other hand, if a person chooses NOT to purchase health insurance that person cannot require that others subsidize their health care should they become ill. It is a choice each individual must make, and then live with the consequences of their choice. But as for the government requiring us to purchase anything, I believe that to be an usurpation of powers not granted them and therefore unconstitutional.
The next clause I would like to discuss it the power to coin money. This act was granted government because each of the thirteen states had their own currency which made it difficult to use in the other states. Therefore it was agreed that a common currency was needed and that the power to establish that currency, and set its value was needed by the federal government.
The power to coin money was therefore a delegated power which we the people granted our government. There is a legal maxim which states, delegata potestas non potest delegari, which means no delegated powers can be further delegated. But the Necessary and Proper Clause states that Congress shall have all powers required to carry into execution the specific powers granted it by the Constitution.
In 1792 Congress passed the Coinage Act which established the U.S. Mint. Under this act coins were to be produced and their values set according to certain standards that would be uniform throughout the nation. This was a necessary and proper act in that without establishing a mint Congress could not coin money, nor regulate its value.
But then in 1913 something happened. Congress passed the Federal Reserve Act. Now, if you look at a U.S. dollar it does not say U.S. dollar, it says Federal Reserve Note. To understand why this is so important you must understand the definitions for lawful money and legal tender. Are they not one and the same you ask? No, they are not.
Legal tender is a phrase found in the Federal Reserve Act itself. According to the Federal Reserve Act, legal tender “…shall be obligations of the United States and shall be receivable by all national and member banks and Federal reserve banks and for all taxes, customs, and other public dues. They shall be redeemed in lawful money on demand at the Treasury Department of the United States, in the city of Washington, District of Columbia, or at any Federal Reserve bank.”
So, if you could take a legal tender $10 bill to a federal reserve bank and exchange it for lawful money, then there must be a difference. You used to be able to take a federal reserve note into a federal reserve bank and exchange it for an equivalent amount of gold or silver. But in 1933 Congress again changed the law so that all U.S. coins AND currency constituted legal tender, making Federal Reserve Notes the ONLY currency we can use to purchase items and to pay debts.
So what happened is that Congress delegated the power to coin money to a private consortium of banks, who then print our money. Whether they do so for profit or not is at this point irrelevant. Congress delegated a power to a private interest with the sole power of printing, and regulating the value of our currency. The Federal Reserve IS a private interest, it’s name may include the word federal, but other than the Board of Governors appointed by the President, it has no ties to our government. They are not audited, and are under minimal, in no, Congressional oversight.
Again, whether it was right to give a private banking consortium control of our currency to keep it stable is irrelevant. The question is was it legal for Congress to do so? If we delegated the power to Congress, they cannot delegate it to someone else and this is what they did by passing the Federal Reserve Act.
Then there is the hot topic of immigration. Congress does have the power to establish a uniform rule of naturalization, which they have and can be found in our immigration laws. Yet the presidents, whose job it is to see that our laws be enacted and enforced, have failed to do so in regards to immigration. Now they cry that we must change the laws and pardon all those who have come here illegally just because they are already here. In 1986 we were told the same thing when President Reagan signed the Simpson Mazzoli Act, otherwise known as IRCA. We were promised that our immigration laws would be strengthened so as not to require any more amnesties. Yet here we are again, our government not overstepping its power, but failing to exercise it.
I’m sorry if I sound insensitive, but the law is the law. If you enter this country illegally you are a criminal and deserve whatever punishment the law mandates.
And for the last of the specific powers granted our government, I’d like to discuss the power to declare war. This power was delegated to Congress, not to the president. In 1793 George Washington declared, “The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
Yet again we see Congress delegating powers to the president. In 1973 Congress passed the War Powers Act, which gave the president the power to send troops into battle in case of a national emergency created by an attack upon the United States, its territories, its possessions, or its armed forces. All the president had to do is to notify Congress within 48 hours. It does however limit the time these forces can be deployed to sixty days with a thirty day withdrawal period unless Congress formally declares war. How long have we been in Iraq, Afghanistan?
In a message to Congress in 1805, Thomas Jefferson said, “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
How often do we now hear of our government sending troops to a particular region of the world to settle disputes and maintain peace?
In a Fourth of July Address, President John Quincy Adams stated, “America, in the assembly of nations, since her admission among them, has invariably, though often fruitlessly, held forth to them the hand of honest friendship, of equal freedom, of generous reciprocity. She has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights. She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own. She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart… But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom.”
It is not our purpose, nor is it among the powers granted our government, to police the world, to interfere in the internal affairs of other nations, to instill democracy for all. The sole purpose for our military, and the power to declare war, is to protect our nation from external attack. To put it in terms everyone can understand, if someone messes with us we go in, kick their ass, and leave them to lick their wounds. We do not go in and try to force them to accept our way of life, we merely let them know that we are not to be trifled with. And this is only when Congress authorizes it. The president has no power to send troops abroad to fight in whatever battles he deems necessary to protect American interests.
As Joseph Story said in his Commentaries on the Constitution, “War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger, that war will find it both imbecile in defence, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace.”
Those are just a few examples of the specific powers granted by us to our government which have been violated. What about the powers our government wields that are not even mentioned? Among them I would like to address but one, the power to subsidize. How much money is spent annually by our government to fund people who are needy? I can already hear the bleeding hearts saying that I am cruel and insensitive. No, I am merely speaking from a legal perspective. Is our government authorized to take from those that have and give to those who are in need?
In a speech before the House of Representatives in 1794 James Madison clearly stated that “Charity is no part of the legislative duty of the government.” Throughout our nation’s history numerous presidents have vetoed acts passed by Congress which would take money from the federal treasury and give it to those in need, stating that they did not find it amongst the powers granted government to do so.
Yet now I could not even begin to list all the money that is spent of federal aid for some reason or another. On top of that, what about all the money we hand out in the form of foreign aid? Where is it stated that our government can donate millions of tax dollars to other countries? If you can find where in the Constitution that it specifically says our government can give money to foreign nations I will personally give you $100!
These are just the powers that our government has abused that are among those specifically enumerated within the Constitution. What about our rights?
As our Constitution was being argued amongst the states there were certain among them who would not agree to its ratification unless a Bill of Rights were included to protect certain rights of the people. The government has enacted so many laws which violate our rights that I cannot even begin to list them all.
The simple truth is that our rights are beyond the scope of powers granted government. In Miranda v. Arizona the court ruled, “Where rights are secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
And yes, it is that simple. If there is a right listed in the first ten amendments to the Constitution then our government has no authority to enact laws which violate them. It does not matter that we are in a war on terror, or that guns are used to commit crimes. Punish those who violate the rights of others, but leave the rights of average people alone.
Yet now we have laws declaring what we can and cannot say violating our freedom of speech. We have laws which say what type arms we may not own in violation of the Second Amendment. We are spied upon, our records searched, our persons and belongings searched in the name of fighting terror, all in violation of the Fourth Amendment. I could go on, but you may as well read some of my previous articles where I have gone into greater detail. The point is that our government was established to preserve and protect our rights, not limit them.
Yet people celebrate Independence Day as if nothing is wrong in this country when the truth is we live under a far more tyrannical and oppressive government than did our Founders when they wrote the Declaration of Independence.
I know this has been a long winded rant, but it needed to be said. I have no illusions that it will make any difference in the grand scheme of things. In fact I’m certain that those who need to read it most won’t. But it gets it off my chest, and for me, these days that is enough.
So go on, celebrate your Fourth of July as if America were still the nation which our founders bequeathed to us. Just expect me to join in with you because I know the truth.