Fighting to Preserve Liberty in America
In the presidential debate on January, 7, in New Hampshire, ABC’s panel pressed hard to have the candidates say whether they believed states had a right to make contraceptives illegal and whether there was a Constitutional right to privacy. Romney, sidestepped it like a skilled matador, Ron Paul fumbled it.
Photo by Mike Licht, nationscapital.com
Often overlooked in the class warfare that President Obama is unleashing on America so that he can continue spending, is how business is being strangled by regulations. Every time the government fails to protect our rights and freedoms because it is too busy trying to micromanage our lives, and as a result some calamity descends upon us, the answer is always more regulations. Nowadays, that will typically mean thousands of pages of new laws that turn into tens of thousands of pages of new regulations and those who never met a payroll wonder why we are stuck at 9% unemployment.
The times were dark ones. In some parts of the world communism was taking hold and viewed by some as the future that works. In other regions fascism was gaining in Germany and Italy. In the U.S. President Roosevelt and his administration tried idea after idea to end the Great Depression without success. Despite Roosevelt’s admonition that we only have to fear is fear itself, fear was always at people’s elbows.
You almost have to wonder, why in the world did he run for president? Was he swept up in the ego trip? Was he reading too much into his own press clippings? Did the historic opportunity of being the first real black president, sorry Bill Clinton, in U.S. history overwhelm a careful consideration of what the job entailed?
I still find myself in awe of our Founding Fathers who created our form of government. The competing ideas that they sifted through to come up with our Constitution and the safeguards in it is wondrous. The designs upon it by the progressives is by equal measure disturbing.
We currently have a commission investigating how to deal with our ballooning deficit and Brobdingnagian debt. In the past we have had a commission on military base closings and I am sure there were others that don’t immediately come to mind. Why do we need them when Congress and the President have the necessary power to make these changes? Cowardice. It may be a harsh charge, but that is basically it, no one wants to go on record making tough choices, but if they can get an unelected bipartisan commission to make a recommendation that Congress can vote “all or none” then there are plenty of political fig leaves to go around.
“Well, I didn’t vote for that one, I voted for this one, but it was an all or nothing deal so I couldn’t separate them out.” We pay these people $174,000 each in base pay and they punt the hard choices to a commission. Why? Because they see their primary job as keeping that $174,000 per year job, something that gets easier once you are an incumbent, so long as you don’t make a major mistake, like a hard decision for the benefit of the country.
If you look at the Constitution, the powers granted to the federal government were few and defined, as Madison put it in Federalist No. 45. With such limited and defined powers, the federal government should focus on a limited number of items and deal with them directly. But the size and scope of the federal government has grown enormously and the current administration wants to grow it even more enormously. So don’t look for any tough choices. Look for more and more commissions to deliver up “solutions” that the weak kneed members of Congress can vote up or down for. This is gridlock by design.
Once you move most government functions to the federal level, how can anything possibly be accomplished? How do you pass a law that benefits New York and doesn’t harm Alaska? How much do Alaska and New York have in common? Perhaps that is why most major pieces of legislation coming out of Congress run into thousands of pages? Look at it this way, if a bill of twenty pages is applied differently to fifty states, you soon have 1,000 pages. But what the Constitution says is that there are a few enumerated powers given to the federal government and everything else is left to the states and the people. Let the people of Mississippi pass a law of twenty pages that suits the people of Mississippi and let the people of Idaho pass their own. This will bring about the ability for the other 48 states to look at these two examples and decide for themselves which one would work better in their state or choose a completely different path or none at all. But if it is all at the federal level you can yell and scream and jump up and down on your Congressman’s desk for all that matters and he can say, “Gosh, I’m just one of 435 members here. I agree with what you are saying, but…” If the issue is at the state level you have more clout and at the local level even more so.
But what we have is a government whose spending is out of control. We have a commission that will not report until after the mid-term elections and as sure as I draw a breath, their report will be full of new taxes including a Value Added Tax (VAT) to bring buckets of tax revenue to put out the spending conflagration. Sure there will be some spending cuts, mostly in the discretionary areas that don’t add up to much of the budget anyway, but probably make for good media coverage.
We need to shrink the monster. We need to take away from the federal government those responsibilities that are not spelled out in the Constitution and let the states and their residents decide how to handle the rest, if at all. If we don’t take these steps, the gridlock we see today will continue. The only difference will be that our Congressional representatives will be making over $200,000 a year before long to do what would get them fired in the private sector.
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. – Tenth Amendment of the Constitution of the United States of America
The Tenth Amendment
The Tenth Amendment of the Constitution is an interesting piece of work. The way the Constitution is written is to explicitly state what the national government could do, and thereby exclude it from doing everything else. When some of the Founding Fathers advocated a Bill of Rights the federalists strongly objected. Why? First, they thought it was redundant. If, for example, the Constitution did not say the national government could regulate speech then having a First Amendment guaranteeing the Freedom of Speech made no sense. The national government was only permitted to do precisely what the Constitution said it could do.
The second objection concerned having the opposite intent of the original writing of the Constitution. You see, if the constitution has a provision that says what the national government cannot do (First Amendment barring free speech for example) it implies that the national government can do anything else that is not prohibited, which is exactly what the federalists did not want the Constitution to say. It wanted to specifically enumerate the powers granted to the national government and no more. So they compromised by adding the Tenth Amendment, which spelled out that distinction. To quote Hamilton in Federalist 84:
“Why, for instance should it be said that the liberty of the press should not be restrained, when no power is given by which restrictions may be imposed?”
The Federal Government’s Runaway Growth
The federal government has expanded enormously particularly with FDR and the New Deal. The Supreme Court has paid scant attention to the Tenth Amendment in curbing that expansion. Perhaps it is time they gave it a closer look and more weight in their decisions.
Below is what the Constitution says Congress has the Power to do.
Article I. Section 8. The Congress shall have Power To:
Does anybody see anything there about minimum wages? miles per gallon? housing subsidies? urban development? education? energy? James Madison summed it up thus in Federalist 45:
“The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiations, and foreign commerce;….The powers reserved to the several states will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.”
To see how far we have come from Madison’s and the other Founding Fathers views can be seen in the New Deal era court case Wickard v. Filburn(1942). Roscoe Filburn was a farmer during the Great Depression who was growing wheat to feed his chickens. The Federal Government had imposed limits on how much wheat a farmer could grow based on acreage in order to prop up wheat prices. The amount of wheat that Filburn was growing exceeded this number, however, Filburn intended to use the wheat entirely on his own farm. Not only was the wheat not going to leave his home state, it was not going to leave his farm! But the Supreme Court ruled that by growing more wheat than allowed, Filburn would not have to buy additional feed in the open market and by not doing so the lack of his consumption of wheat on the market would adversely affect the price of wheat, therefore he was violating the Federally imposed limits. Now if that doesn’t set off Tenth Amendment alarm bells, I don’t know what could.
Federal Government Sprawl
Here are the cabinet level departments of the Federal Government. Those in bold seem, in my opinion, to be consistent with the enumerated powers above. Those in italics seem, again in my opinion, to be a national government overstepping its Constitutional bounds. It is not that each and any of these things should not be done at all, but according to the Tenth Amendment should be at the discretion of the states or local government.
Federalism
One of the brilliant ideas of federalism is the ability to vote in two ways. One, is at the ballot box and the other is with your feet. If my state puts forth a bad idea and the majority of the citizens of my state agree with the bad idea, I have the freedom to move to another state. However, if we keep moving all these bad ideas up to the national level, my right to vote with my feet is taken away. If states like California and New York choose to follow polices that lead to their bankruptcy, so be it, but let’s not force those policies on Texas and Florida or force the citizens of those states to pay for the mistakes of Californians and New Yorkers.
Since George Washington, who had four cabinet positions, we have added thirteen new cabinet departments and eliminated two and the ones eliminated did not go away, they simply became part of other government entities (e.g., Navy into Defense; Post Office into Postal Service). In other words our government is telling us that they have not solved a single problem for which one of these agencies were created since 1789, otherwise why wouldn’t that cabinet department be shut down, after ceremoniously giving all the key players well deserved gold watches? But Government encroachment marches on with the Obama Administration poised to devour one-sixth of the U.S. Economy into the Department of Health and Human Services. They tell us they know how to solve that problem. With their track record do you believe them? Perhaps it’s time to dust off the Tenth Amendment, and start putting a scalpel to the federal government rather than tying a bib around its bloated neck.
Let’s look to 2010 as the year we start taking back our government. Polls show how far out of touch our elected leaders are from the views of their constituents. It’s time to retire them from office. Let’s keep up the hard work and countdown to November 2010.
Congressman Tim Bishop referred to it in his town hall meeting. If you ask a statist where does the Constitution authorize them to get involved in every detail of our lives, the only place they can point to is Article I, Section 8:
The Congress shall have the Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; {my emphasis}
So what does the general Welfare mean? Statists who claim the Constitution is a living breathing document believe that this clause gives them the right to do whatever they please, and whatever gets them reelected. As conservatives we believe in original intent and therefore we have to go back to what the founders meant when they penned those words. Why is that an important distinction? Because the meaning of words change.
Are You Gay?
If you were asked that question in the eighteenth century, the questioner would have been asking you if you were merry; keenly alive and exuberant; having or inducing high spirits. If asked that question today, the questioner wants to know if you are a homosexual. So if the founders wanted to emphasize that the Constitution was a serious document and wrote, “nothing contained herein should be construed to be gay,” no one at the time would have raised an eyebrow, other than the dopiness of the clause. If read in today’s context, it would create an uproar.
Are You Bad?
The band Huey Lewis and the News have a song called “Bad is Bad” in which the band plays on how the word “bad” now means ”good” in contemporary vernacular, but sometimes it actually means bad, really bad. It shows how words change can change with time. Back when the Founders wrote the Constitution and you said someone was bad, you might find yourself choosing dueling pistols. Today, the response to the statement, “You’re bad,” would probably be, “Thanks, man.”
So if you don’t seek out the original meaning of the Constitution and our laws based on when they were written, everything can become meaningless over time.
What Did the Founders Mean by Provide for the General Welfare?
Alexander Hamilton was a proponent of a broad interpretation of the General Welfare and he supported that position during the Constitutional Convention. However proposals along those lines, such as spending for internal improvements were rejected by the Convention.
“{James} Madison repeatedly argued that the powers to tax and spend did not confer upon Congress the right to do whatever it thought to be in the best interest of the nation, but only to further the ends specifically enumerated elsewhere in the Constitution, a position supported by Jefferson.” — The Heritage Guide to the Constitution, p.93
There was another interpretation that fit in the middle that even Hamilton recognized. That was that the term “general” meant “national” welfare and not for purely local or regional benefit. President James Monroe demonstrated this
“in his 1822 message vetoing a bill to preserve and repair the Cumberland Road. Monroe contended that Congress’s power to spend is restricted ‘to purposes of common defense, and of general, national, not local, or state, benefit.” — The Heritage Guide to the Constitution, p. 93.
Later President James K. Polk vetoed a bill that looked a lot like today’s runaway earmarks.
“It provided $6,000 for projects in the Wisconsin territory — constitutionally permissible because of Congress’s broader power over federal territories — but it included $500,000 for a myriad of projects in the existing states. Polk contended that to interpret the Spending Clause to permit such appropriations would allow ‘combinations of individual and local interests [that would be] strong enough to control legislation, absorb the revenues of the country, and plunge the government into hopeless indebtedness.’” – ibid, p. 95
If you changed some of the numbers you could have written that today rather than in 1847. Where this came off the rails, along with so many other government disasters we are paying for today, was during FDR’s tenure beginning in 1936. Subsequent Supreme Court decisions left the definition of “General Welfare” up to Congress. How ridiculous is that? Justice Sandra Day O’Connor summed it up pretty well in her dissent in South Dakota v. Dole
“If the spending power is to be limited only by Congress’ notion of the general welfare, the reality….is that the Spending Clause gives ‘power to the Congress….to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.’ This….was not the Framer’s plan and it is not the meaning of the Spending Clause.”
Out of Control Spending
The outrage demonstrated at the town halls shows that the American people are fed up with Congress ignoring what they are saying and bankrupting the country. The Supreme Court in the 1930s opened the door to profligate spending by Congress that was kept in check by the Constitution for 140 years prior. To allow Congress to define general welfare as they want and then spend accordingly makes no sense logically or otherwise. If the Supreme Court does not set this right, a Constitutional Amendment may be required, and I am no fan of amending the Constitution at every turn. As an American I take pride our Constitution that we have only felt a need to amend 27 times in over 200 years. But if we allow changes in the definitions of words to drag the Constitution along with them, then we need to take measures to put the Constitution back where it was as a beacon to guide us rather than a quaint artifact of our history.
Movin' Out
One of the great blessings bestowed upon us by our Founding Fathers was federalism. Our federal form of government evolved from the Articles of Confederation, where states had primacy and the national government acted only with the consent of the states. This proved to be too cumbersome.
In writing the Constitution, the Founders identified very specific roles and responsibilities for the national government and left everything else to the states or the people (see Tenth Amendment). In doing so it gave the people the power of liberty through mobility. If you didn’t like the way they did things in Massachusetts, you could move to Virginia. If the people of Pennsylvania didn’t want a mass migration of people to Georgia, they needed to be careful regarding the laws that they passed so as not to alienate a large block of their constituents.
The War on Federalism
The statist, who loves government and believes government should control every aspect of our lives, hates federalism, because it weakens its control. So they attack it through the courts.
Here is their standard battle plan. Let’s the case of Gay Marriage. Vermont’s legislature approves Gay Marriage. Whether you are in favor of that or oppose that it shouldn’t affect you if you don’t live in Vermont. If you are in favor and you live elsewhere, you can move to Vermont. If you live there and are opposed you can either fight to overturn it in Vermont, or move elsewhere. That’s the beauty of federalism. If continued to its logical conclusion, some states would approve it and those in favor would migrate there, and those who are opposed would concentrate in states that would ensure that it would not be adopted in their state. You could have a raging debate, but your liberty would be preserved through mobility.
However, the statists have a different view of things. After the law is passed in Vermont by the legislature (as is proper), or made up out of thin air by the court in Massachusetts (judicial activism and improper), some couples who are married in these states move to another state. By doing so, they should leave their state sanctioned rights behind. However, what they will typically do when their Vermont sanctioned rights are not honored in, say, Tennessee they will rush to federal court and says their Constitutional rights are being violated. A court stocked with judicial activists, will find some fig leaf of justification with words like emanations and penumbras, to make a new law of the land and with the stroke of a pen, the liberties of all Americans will be swept away based on the will of the people of Vermont. You no longer can protect your liberty through mobility. You cannot go anywhere to live in proximity to like minded people and live the life you believe in. Mobility is no longer a tool to protect your liberty it is a weapon against you. People can secure rights elsewhere and use mobility to come to your doorstep and use the courts to force their beliefs on you.
Fierce Fighting
I believe that is why the fighting over these issues become so fierce and acrimonious. If something is allowed anywhere, it will soon be allowed everywhere, because of an activist judiciary. Our rhetoric has become more strident, our politics is anything but bipartisan, all because everything is being elevated to the federal level. States are becoming less and less important. If you don’t believe it ask people, who was responsible for the fiasco after hurricane Katrina? If they say President Bush, ask them to name the mayor of New Orleans or the governor of Louisiana at the time. Bush and the federal government should have been the third line of defense, not the first. The first should have been the city, then the state and then the federal government.
Back to Federalism
Show me where in the constitution it says the government should own General Motors and Chrysler. Show me where it says that a tunnel, entirely in the city of Boston should be paid for by the taxpayers of Arizona. Show me where in the constitution it says education is the responsibility not of local government but the federal government. It doesn’t. And until well roll back this juggernaut, our liberties will be crushed little by little, day by day.
This is why it is also important to guard against activist judges getting on the bench or being elevated to higher levels of the court. It is just these activist judges who are taking away your liberty to move away from those who don’t believe what you do and moving toward those you do agree with. Take note of the nomination of Judge Sotomayor to the Supreme Court.
