Mark Twain once remarked, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure, that just ain’t so.”
Twain’s comment speaks eloquently to the prevailing understanding of the Constitution, especially (and surprisingly), among the ranks of the self-proclaimed “small government” Tea Party Republicans.
When asked what section of the Constitution authorized Obamacare,
Nancy Pelosi
Nancy Pelosi was infamously quoted as saying, “That’s not a serious question.” While the conservative Republican pundits and bloggers were rightfully outraged by her cavalier attitude, the surprising fact is that when it comes down to it, most Republicans would probably agree with her, including many of the aforementioned “small government” Tea Party Republicans.
Before we delve into support for my controversial assertion, we need to have an understanding of what the Constitution is and is not. The Constitution is not a list of rights “we the people” have, nor is it a list of suggestions for the Federal government. The Constitution is quite simply an absolute prohibition against Federal over-reach beyond the prescribed limitations of the Constitution.
Article 1, Section 8, of the US Constitution lists the enumerated powers of the Federal government.
According to the Merriam-Webster Collegiate Dictionary Eleventh Edition, the word “enumerated” means:
1. To ascertain the number of: count
2. To specify one after another: list.
By definition, any power not enumerated, is a power that the Federal government may not exercise, a principle made more clear by a careful reading of the ninth and tenth Amendments:
9th Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, any power not delegated to the United States by the Constitution (found in the enumerate powers) is reserved for the states, or the people.
During the debate about the ratification of the Bill of Rights, James Madison had this to say:
It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government.
I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent . . .
There is no logical argument to be made to support the idea that the Constitution is anything other than an absolute prohibition against federal power beyond the strict limits of Article 1, Section 8.
Once we’ve established this, we can conclude that the vast majority of the Federal government’s actions lie outside the confines of Article 1, Section 8, and are therefore unlawful. This sounds like an extreme position to take, but it is precisely what Alexander Hamilton said in June of 1788:
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.
But what if the Federal government ignores the confines of the Constitution, as they clearly have? What recourse do “we the people” have? For decades, the widespread belief has been that the Congress, the White House, and the Supreme Court all serve as the check and balance against government over-reach. It is a common misconception that the Supreme Court has the final say in what is and is not allowed by the Constitution. While many people believe this without question, it is demonstrably and incontrovertibly false.
For one, the Supreme Court is a branch of the Federal government. The idea that the Supreme Court provides the final check and balance to federal over-reach is analogous to the idea of someone in a dispute with a mafia kingpin allowing his mafia brother to arbitrate the dispute between the two. It simply makes no logical sense. Furthermore, this flies in the face of the idea that we live in a Constitutional Republic. If we allow the idea that the men and women making the laws get to decide the limits of their own power, we no longer have a Constitutional Republic, but rather an Oligarchy. We are ruled by a select few, not law. This misunderstanding of the structure of our government logically ends with our government power being left solely to the whim of the men and women that make up the Congress, the Supreme Court, and the Executive Branch. Thomas Jefferson had this to say on the subject:
In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.
From the Declaration of Independence:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Furthermore, this misunderstanding disregards the fact that our elected officials, and many appointed officials as well, take an Oath of Office to the Constitution. Not only do the state legislators and governors have the ability to enforce the Constitution on the Federal government; if they are to honor their respective oaths of office, it is their duty. This Oath of Office is not to be subservient to an omnipotent Federal government, but to uphold the Constitution, even against the Federal Government itself if it is required. Some would argue that Federal Law, trumps State Law, even outside the strict confines of Article 1, Section 8. It is the Federal government itself that is making this assertion of primacy. If we accept this, we have now again become am oligarchy, ruled by a few. Clearly this is not what the Founders intended, nor is it even remotely supported by the Constitution. In fact, it is explicitly prohibited by the tenth Amendment. Numerous recent cases of local county sheriffs refusing to allow the federal agents to carry out unconstitutional actions have rightfully ended with the federal agents backing down. In one such recent case, Sheriff (Brad Rogers) had this to say:
When you assert that federal law trumps state law, it is a distortion of the intent, content and extent of the supreme law of the land – the U.S. Constitution –seen through a myopic and misunderstood view of Article VI, section 2 (The Supremacy Clause).
The Sheriff is absolutely correct, and is faithfully carrying out his oath of office by prohibiting the Federal agents from taking unconstitutional action against one of the residents of his County.
Chapters included in this 232 page book include, Department of Agriculture, Department of Commerce NOAA NMFS, Central Intelligence Agency CIA, National Security Agency NSA, Department of Defense DOD, Department of Education, Department of Energy DOE, Environmental Protection Agency EPA, Federal Law Enforcement Associations, FDA / HHS / SSA / HUD / OPM, Department of the Interior, Department of Justice DOJ, Drug Enforcement Administration DEA, Federal Bureau of Investigation FBI, United States Border Patrol, Immigration and Naturalization Service INS, United States Marshal Service USMS, Department of Labor, United States Postal Service USPS / USPIS, Department of State, Interpol / United Nations / USIA, Department of Transportation DOT, Amtrak, United States Coast Guard USCG, Federal Aviation Administration FAA, Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms ATF, United State Customs Service USCS, Internal Revenue Service IRS, United States Secret Service USSS, Judicial Branch / Federal Courts, Veterans Administration / Department of Veterans Affairs VA, Legislative Branch / United States Congress, Independent and Quasi-Federal Agencies, National Aeronautics and Space Administration NASA, National Science Foundation, Tennessee Valley Authority TVA, U.S. Trusts, Territories, and Possessions
A prime example of conservatives missing the mark on this principle is the Federal “War on Drugs.
There is no Constitutional authority for the Federal Government to wage the “War on Drugs.” Period. In fact, absent a Constitutional Amendment, it is prohibited from doing so. This is further supported by the fact that in the late 1920s when the government at least made an attempt to follow the Constitution, it passed the 18th Amendment to give the Federal Government the power to enact prohibition. They correctly understood that the Federal Government had no such power granted to it through Article 1, Section 8. The same goes for the FDA, the EPA, the BATF, the Department of Energy, the Department of Education, etc. We cannot be intellectually honest and call ourselves Constitutionalists while supporting the existence of these agencies absent a Constitutional Amendment to provide the Federal Government the required authority.
The Commerce and General Welfare Clauses
A discussion of this nature is incomplete without addressing the abuse and perversion of the Commerce and General Welfare Clauses of the Constitution our government has been guilty of. Let’s first examine the General Welfare Clause (Article 1, Section 8, Clause 1)
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This is different than the statement in the Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.
Since the preamble is not listed in the enumerated powers of the Federal Government, it must be viewed appropriately: as a purely declaratory statement as to the purpose of the Constitution, and grants to the Federal Government no power whatsoever.
Specifically, Clause 1 grants the Federal Government the power of taxation. That’s it. No more, no less. All the tax collected may only be used to “provide for the common Defense and general Welfare of the United States” pursuant to the following clauses in Article 1, Section 8. There is no logical argument to support that Clause 1 somehow supercedes the subsequent clauses, granting the Federal Government powers not granted among them. One of the stated purposes of the Constitution is to “promote the general Welfare.” It does violence to the language and intent of the Constitution to argue that Clause 1 somehow gives the Federal Government any power beyond simple taxation. Furthermore, we need to keep in mind the meaning of the phrase “general welfare.” By definition general welfare, benefits everyone equally. Federal entitlement programs, though often justified by the “General Welfare Clause,” by definition are not general welfare, but rather specific welfare for the recipients of the benefit, and thus, completely and utterly in violation of both the spirit AND the letter of the Constitution.
Article 1, Section 8, Clause 3
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
In order to understand this correctly, we need to use the definitions of the words as they were used at the time the Constitution was written. Webster’s first edition printed in 1828 would be the best place to look for definitions to understand the original intent and meaning.
According to Webster’s:
Commerce: In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.
Active commerce:
Active commerce, is the commerce in which a nation carries its own productions and foreign commodities in its own ships, or which is prosecuted by its own citizens; as contradistinguished from passive commerce, in which the productions of one country are transported by the people of another country,
The commerce of Great Britain and of the United States is active; that of China passive.It may be of interest to foreign nations to deprive us, as far as possible, of an active commerce in our own bottoms. ~ Federalist, Hamilton.
To correctly understand the meaning of the commerce clause, we must determine which definition was intended for “commerce.” Commerce with foreign Nations and with the Indian Tribes is clearly “foreign commerce.” The question remains; with respect to “among the several States” is it inland or foreign commerce? Notice the phrase in question is “among the several States,” not “between the several States.”
Between:
From one to another; passing from one to another, noting exchange of actions or intercourse; as, things go well between parties.
Among:
2. Conjoined or associated with, or making part of the number.
Gordon S. Wood In his book The Radicalism of the American Revolution noted:
This growing belief that domestic commerce of the United States was “incalculably more valuable” than foreign commerce, and that “the home market for productions of earth and manufactures is of more importance than all foreign ones” represented a momentous reversal of traditional thinking. “Commerce” in the eighteenth century had usually referred exclusively to international trade. Now it was being equated with all exchanges taking place within the country, exchanges in which both parties always gained.
We can conclude from this that the Commerce Clause, as it was written, was not ever intended to give the Federal Government authority to regulate trade between the States, and most certainly not the authority to regulate trade between the citizens of the States. The phrase “commerce . . . among the several states” meant international commerce that crossed state lines. The clause was only intended to give the Federal Government power to control this international trade. Furthermore, it gave the Federal government the power to prevent the port States from enacting de-facto taxes against the other states on imports by levying heavy import taxes.
This is even more apparent when we consider that one of the great discussions of the day centered on the concept of Mercantilism. Mercantilism was the idea that maintaining a positive trade balance with foreign nations was of paramount importance. The commerce clause gave the Federal Government the authority to pursue this policy.
Another very important thing to consider is that the Founders worded the Constitution with extreme care. They used the words “State,” “People,” and “US Government” to mean specific things.
If the founders had meant the commerce clause to regulate exchange of commodities between inhabitants of the states, they would have instead written “commerce between the people,” but they didn’t.
Examining the Wickard vs. Filburn Supreme Court decision of 1942 in this light leads to the undeniable conclusion that the Supreme Court got it all wrong. In this decision, the Court erroneously used the Commerce Clause to assert that the Federal Government could regulate the ability of a farmer (Roscoe Filburn) to grow and consume crops on his own land. The Federal Government had enacted legislation that prescribed limits on wheat production based on the acreage that the farmer owned. Filburn was exceeding the limits, but consuming the excess wheat entirely on his own farm. The Court argued that because this had an impact on the wheat available on the open market, and this affected interstate commerce, it could be regulated. The absurdity of this is crystal clear after we examine what the Commerce Clause really means, but it was to have a lasting impact on the structure of the Federal Government. This one case effectively did away with the entire basis of the Constitution, because now the Federal Government could effectively regulate every facet of commerce. It turned the “enumerated powers” into “unlimited power.”
All this leads us to the undeniable conclusion that the common understanding of the Constitution is utterly mistaken It really does mean exactly what it says, contrary to what the statists would have us believe, and most of us have been taught. We all should agree that the question asked of Nancy Pelosi is indeed a serious question, one that should be asked of EVERY Federal action, even if we aren’t completely comfortable with the answer.
You either agree with Thomas Jefferson that the Constitution is a strict and unbending restraint on Federal power, or you agree with Nancy Pelosi that it serves no limit at all and we live in an oligarchy instead of a Constitutional Republic. There is no room for compromise. There is no “moderate” middle ground. Any argument to the contrary is simply logically indefensible within the confines of the context and language of the document.
I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
~Thomas Jefferson
Excellent overview of the important issues, nice work Sam!
Awesome. I certainly hope you are successful in your quest for office as we need more legislators with respect for the Constitution. And the intellectual and moral courage to defend it.