From time to time I’ll throw a question into my commentaries, never knowing if they actually stop reading to answer them before they continue reading. This is one instance that I would hope that they do; stop reading that is, and ponder the question and formulate an answer – it shouldn’t take too long, as it is a simple question.
My question is: Do you think that there are limits imposed upon the power your government can exercise, or are its powers limitless? See, told you it was a relatively simple question; either you believe there are limits to the powers your government can exercise or you don’t. So, which one is it?
I would like to begin my discussion by speaking to those who believe your government’s powers are boundless. If you truly believe that why would James Madison, the so-called Father of the Constitution, say otherwise? In Federalist #45 Madison clearly states, “The powers delegated by the proposed Constitution to the federal government are few and defined.” Now I’m not the brightest lamp in the room but that sure sounds like Madison was saying that there are limits to the power government can exercise, and that those powers were clearly defined.
Then there was this, written by Thomas Jefferson in 1798, “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government…” (My emphasis)
So here we have the man who wrote our Declaration of Independence, and the man who most historians call the Father of our Constitution, both saying that the powers delegated to your government are limited. So, if you happen to be among those who believe your government has no restraints upon its power, please explain to me how you justify that belief.
Now please, don’t give me that nonsense that the Constitution is a living document, that it is subject to change as time passes because the Founders could not foresee the changes America would undergo; for that’s utter rubbish. A century and a half AFTER the Constitution went into effect the Supreme Court of the United States declared, “…in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.” (Source: United States v Class, 1941)
If you will but read, and ponder, those words, I think it will shoot down any argument that the Constitution is a living document. It is a law, a compact between the people of the various States to create a system of government; and what it meant back in 1787 it still means today. Society may have changed, but the Constitution, unless altered by a constitutional amendment, remains the same today as it was the first day it was written.
Now, for those of you who are patting yourselves on the back for answering that the powers given government are limited, it’s time to address your position. If that is indeed the case, then where might one find the limitations imposed upon your government? Do you think you’ll find those limits in a high school text book on government? Do you think the news media is going to do a detailed investigative journalism piece on the specifically enumerated powers of government; and how our government has exceeded them?
No, if you want to know what powers were delegated to your government you are going to have to find a copy of the Constitution and sit down and read it. However, before you do that there is something I want to share with you; a quote from my friend Mike Gaddy, “It’s one thing to know the words in a Constitution; it’s more important to know how they got there and why!”
I’m not going to lie about this; I was just as guilty as a lot of others in focusing most of my attention upon Article 1, Section 8 of the Constitution, where all the specific powers delegated to our government are listed. I, to my own regret, neglected to study the manner in which the Constitution was written and the built in trapdoors within it that would allow the government to access almost unlimited power over us, our property and our liberty.
But that is why we study things over and over again; gaining new perspectives on them with each re-reading; and it sure doesn’t hurt to have friends who nudge you in the right direction from time to time.
First and foremost our Constitution is a legal document between the States outlining a system of government. It was ratified by conventions, chosen from among the people because the people ARE, whether you choose to accept this or not, the source from which ALL political power emanates. However, it was written by men, some of whom were lawyers, and others who were familiar with the law; and therefore there are loopholes within it that, if accessed and utilized, allow the government to overstep the specific powers mentioned within Article 1, Section 8.
So, while on the surface it may seem like the powers delegated to government are, in fact, limited, it is a carefully crafted document that gives the government it established the keys to the kingdom – unlimited power over us, our lives, our liberty; and to the detriment of the sovereign States.
I would now like to address some of these loopholes in the hopes that I can diminish your awe and reverence for a document that, I believe, was intentionally written to produce a tyrannical and oppressive government.
The first of these loopholes is the inclusion of the wording General Welfare in the Constitution. What exactly is the General Welfare? If you were to look in a legal dictionary published today you would find that the General Welfare is defined as: The concern of the government for the health, peace, morality, and safety of its citizens. Providing for the welfare of the general public is a basic goal of government.
The term General Welfare is found in two locations in the Constitution; in the Preamble and in the taxing and spending clause of Article 1, Section 8. As the Preamble is not a grant of any power, merely a statement describing the purpose for which the document that follows it serves, I will not waste any time discussing it.
However, the taxing and spending power delegated to the government says that taxes may be laid to provide for the general welfare. So is that a blank check; so to speak? Well, Jefferson did not believe so; as in arguing against the constitutionality of a national bank he said, “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”
In legal terminology there is a thing called a qualifying clause. A qualifying clause is kind of like an introductory statement concerning the subject matter that follows it. So, when the Constitution says that Congress has the power to lay and collect taxes for the general welfare, that is a qualifying clause which then is followed by the specific definition of what those general welfare powers are. It is not an unlimited grant of power to do whatever the government thinks is in our best interest, or whatever the people want government to do for them.
The next loophole appears in Clause 3 of Article 1, Section 8; the Commerce Clause. The Constitution merely states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” To understand what that supposedly meant you have to understand what regulate meant back in 1787; it certainly did not mean micromanage every aspect of commerce, trade and production. What regulate meant back then was, to make regular; to allow for commerce to flow freely.
What the people were promised is that the power to regulate commerce meant that goods from Georgia could flow freely all the way to Maine or New York without tariffs or burdensome State regulations interfering with them. But now, due to a misunderstanding, (intentional or not) of what is meant by the term regulate, government gets involved in every aspect of commerce. As an example, the government has rules on what fertilizers and pesticides can be used by farmers in the growing of our food supply. The government then steps in and has laws saying how that food must be harvested and transported. It also has laws regarding those who package that food for sale to the public. And finally, it has laws telling the stores that sell those food items how they must store and display those goods.
That’s just one instance, the agricultural industry, where the government has stepped in and asserted its authority by an abuse of the Commerce Clause. The automobile industry has rules and regulations governing it, as does the food service industry. In short, any time a good is sold to the public the government manages almost every aspect of that industry – all under the umbrella of regulating commerce.
The next loophole appears at the end of Article 1, Section 8, and is known as the Necessary and Proper Clause. This clause states, “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.”
Certain enlightened patriots saw through the thinly disguised grant of unlimited power found in the Necessary and Proper Clause. For instance, in his first essay, Brutus, (Robert Yates) wrote, “The powers of the general legislature extend to every case that is of the least importance-there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has the authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the Constitution or laws of any State, in any way prevent or impede the full and complete execution of every power given.”
In Federalist #44 James Madison went to great lengths explaining and justifying the need for the Necessary and Proper Clause. Then in 1800, when the government began using the Necessary and Proper Clause to expand its power Madison wrote, “The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.”
My take on the Necessary and Proper Clause, (and I could be wrong) is as follows. Let’s say I delegate the authority to build a home for me to a contractor. I am not delegating the power to furnish the home, or fill my pantry with food items; only to build a house that I can live in. Yet it is implied that I am giving them the authority to purchase cement, lumber, paint and whatever electrical and plumbing fixtures are required to finish the home. That is the purpose of the Necessary and Proper Clause; so that the Constitution did not list each step that must be taken to ensure that the specifically enumerated powers were carried out effectively – nothing more, nothing less.
A great debate ensued in the Cabinet of President George Washington when his Secretary of the Treasury sought to create a national bank for the United States. Thomas Jefferson argued against the creation of such an institution, saying that it was not necessary as the Congress could coin and regulate the value of currency without it. In essence, Jefferson was saying that necessary meant that government absolutely needed that power to fulfill its other obligations.
Alexander Hamilton, on the other hand, took a looser view on what was meant by necessary. In his support for a National Bank he countered Jefferson’s argument with the following, “It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.
It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing.”
Unfortunately President Washington chose Hamilton’s side and set the precedent that necessary did not in fact mean necessary; it only meant that it could serve the public good or the furtherance of other constitutional authority. Combined with the Commerce Clause, the Necessary and Proper Clause has been the means by which government has expanded its power a thousand-fold since its inception in 1789 – and I’m not even done yet.
The next loophole comes in the form of a combination between two separate sections of the Constitution; each of which are harmful enough on their own, but when combined open Pandora’s Box for all manner of evil.
The first part of this duo is the Supremacy Clause. The Supremacy Clause states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…”
Now that might sound harmless enough, but in Letters From a Federal Farmer #4, Melancton Smith writes, ” It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New-Hampshire, Massachusetts, etc. but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”
If that weren’t bad enough, then there is the power of making treaties with other nations, found in Article 2 of the Constitution as being among those powers delegated to the President and shared with the Senate.
Again, Melancton Smith warned about this dangerous power, “By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution — nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty…”
So, in essence, any treaty entered into by the U.S. could effectively abolish an entire segment of the Constitution, or do away with a Constitutionally protected right held by the people. Allow me to give you an example of how dangerous this treaty making power is.
In 1913 the Congress enacted a law called the Migratory Bird Law which made the hunting of those birds illegal. In Arkansas a man was arrested for violating that law. However, when he went to trial he argued that his actions were protected by the 10th Amendment. In deciding the case the Judge held, “The court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game in a state, and is therefore forced to conclude that the act is unconstitutional.” (Source: United States v Shauver) A year later a similar case was heard in Kansas with the same results. (See United States v McCullagh, 221 F. 293)
But then something happened. In 1916 the United States entered into a treaty with Great Britain and Canada which protected these same migratory birds. So in 1919 another man was arrested for hunting these migratory birds, and attempted to justify his actions with the same defense used in the Shauver and McCullagh cases – with an entirely different result. This time he was convicted of violating the law, with the same Judge that heard the Shauver case handing down the following decision:
Law can only prescribe the conduct for the people within the jurisdiction of the lawmaker, while treaties are to affect the rights and privileges of subjects of foreign countries and of our citizens in such countries. Treaties are reciprocal, and in all instances the same rights an privileges are granted to the citizens and subjects of each of the contracting parties in the respective countries … To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs would in effect prevent the exercise of many of the most important governmental functions of this nation, in its intercourse and relations with foreign countries. The States of the Union may enact all laws necessary for their local affairs, not prohibited by the national or their own Constitution; but they are expressly prohibited from entering into treaties, alliances or confederations with other nations. If, therefore, the national government is also prohibited from exercising the treaty power, affecting matters which for internal purposes belong exclusively to the states, how can a citizen be protected in matters of that nature when they arise in foreign countries … Even in matters of a purely local nature, Congress, if the Constitution grants it plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states…”
So in essence, if the U.S. enters into a treaty, it invalidates certain rights or privileges of the people and the States, rights and privileges which were supposed to have been protected by the Constitution.
For instance, Congress knows that to enact an outright ban on guns would produce such an outcry from the public that they dare not do so; instead choosing to nibble away at the 2nd Amendment at the outer fringes of its protection of our right to keep and bear arms. But, if the U.S. entered into a treaty, or agreed to a United Nation’s resolution banning the private ownership of guns, they could, and would send your local cops to take yours away.
Such is the power of treaties; they can essentially fundamentally alter the entire Constitution and Bill of Rights with the stroke of a Presidents pen and the approval of the U.S. Senate.
Patrick Henry foresaw the danger this power to make treaties posed to our liberty, and he tried to warn people about it; to no avail. On June 7, 1788 Henry declared, “The Senate, by making treaties may destroy your liberty and laws for want of responsibility. Two-thirds of those that shall happen to be present, can, with the President, make treaties, that shall be the supreme law of the land: They may make the most ruinous treaties; and yet there is no punishment for them.”
I’m gonna tell you something now and you had better listen. Our rights existed before we created our system of government, and no law, no treaty can take those rights from us. They may pass laws saying otherwise, but it is only because we consent to those laws, that we do not willingly and openly disobey them, that they have any force over us.
While there are some laws I obey simply because I choose my battles carefully, there are other laws that, were they to be enacted, I would have to say that I would not obey them. I don’t care if federal agents came for me for my disobedience, or if UN Peacekeepers came to arrest me, or if it was some local cop who came for me, I would resist to my dying breath; and take as many of them out as I could before they gunned me down. It is my own personal decision where this line in the sand is, and each patriot may have their own point where they will say, “I’ve had all that I can stands, and I can’t stands no more.”
I’m just saying that this government, and the people who support it, are pushing us closer and closer to the point where freedom loving Americans are going to have to make a choice, live on our knees or rise up and attempt to throw off the shackles of tyranny.
Now that I’ve gotten that out of my system, let’s get back to my original question. Since I asked you to answer it for yourselves, let me at least do the same. I would have to say, on paper and in the promises made to the ratifying conventions I would have to say that the government created by the Constitution was restricted in its authority and power. That said, I believe that loopholes were intentionally woven into the fabric of the Constitution which would allow it to grow beyond those specific powers and become the government we have today.
Our government could have been restrained had people kept the preservation of their liberty first and foremost in their minds. Unfortunately they began placing comfort, security, a strong booming economy, and a whole list of other things ahead of their freedom to do and say as they please. By voting for candidates who promised to ‘do things’ for them, they gave government a blank check and said, “Spend it as you see fit.”
The unfortunate fact of the matter is that, once government gets a power, it does not relinquish that power without some form of revolution. As John Adams said, “Liberty once lost is lost forever. When the People once surrender their share in the Legislature, and their Right of defending the Limitations upon the Government, and of resisting every Encroachment upon them, they can never regain it.”
And that is why I have taken the same position that Lysander Spooner did, “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
Is there an answer or a solution? I really don’t know. I can tell you this, if there is an answer it won’t come until the people stop worshipping the entity that enslaves them, or the flawed document that produced that entity. People are going to have to wake up and face the fact that their system of government is broken beyond repair, and the blueprint for that system of government was written in such a way as to ensure that it would become a threat to the very liberty the people were promised it would protect and defend.
But so long as people vote; whether it be to keep the ‘other guy’ from getting into office, or to use the power of government to benefit themselves, not a damned thing is going to change; in fact it is only going to get worse. Imagine an avalanche cascading down a mountainside destroying everything in its path. The avalanche is your government, and everything being destroyed is your freedom. There’s no stopping it now – all because we chose party over principle, or ignorance over knowledge. Good job America, Thomas Jefferson, Samuel Adams and Patrick Henry must be very proud of you.