“We start with first principles.”
Chief Justice Rehnquist
United States v. Lopez, 514 U.S. 549
It must be remembered that the Constitution was written with the intent of delegating certain sovereign powers held by the people in order to establish a government to attend to the external concerns of the States. Some of these areas were discussed at the Convention; “The principle purposes to be answered by the Union are these – The common defence of the members – the preservation of the public peace as well against internal convulsions as external attacks – the regulation of commerce with other nations and between the States – the superintendence of our intercourse, political and commercial, with foreign countries.” Alexander Hamilton, The Federalist Papers, No. 23
James Madison stated in “The Federalist Papers No. 45”: “The powers delegated to the federal government are few and defined. . . . [They] will be exercised principally on external objects as war, peace, negotiation, and foreign commerce; with which the last power of taxation will, for the most part, be connected.” (IRS; please note that the power of taxation is principally associated with foreign commerce.)
Roger Sherman’s comments during the convention as reported by Madison stated; “. . . The objects of the Union, he thought were few. 1. defence against foreign danger. 2. against internal disputes & a resort to force. 3. Treaties with foreign nations. 4. regulating foreign commerce, & drawing revenue from it. . . .”; [Notes of Debates in the Federal Convention of 1787]
Justice White referred to this unique division of powers when he said; “The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.” United States v. Butler, 297 U.S. 1, 63 (1936). In 1871 the Court in a dissenting opinion given by Justice Field noted also that “Congress can exercise no power by virtue of any supposed inherent sovereignty in the general government. . . . [T]here is no such thing as a power of inherent sovereignty in the government of the United States. It is a government of delegated powers, supreme within its prescribed sphere but powerless outside of it. In this country, sovereignty resides in the people, and Congress can exercise no power which they have not, by their Constitution, entrusted to it; all else is withheld. . . .
“If the power is not in terms granted, and is not necessary and proper for the exercise of a power which is thus granted, it does not exist. And in determining what measures may be adopted in executing the powers granted, Chief Justice Marshall declares that they must be appropriate, plainly adapted to the end, not prohibited, and consistent with the letter and spirit of the Constitution.” (Legal Tender Cases, 110 U.S. 452 at 467,468)
Article I, Section 8, clause 17 of the Constitution outlines or defines the duties and powers of Congress. Therefore, if the power or authority is not outlined, it does not exist. We have a government of defined powers and the government can only do, what it is directed to do by the Constitution. Understanding clause 1 of Section 8 is best seen in the light by referring to the comments of Sherman, Madison and Hamilton as to the scope of federal power. Federal revenues being raised from ‘duties, imposts and excises’ from their delegated authority to regulate commerce. The outlays of these revenues are to be spent to “pay the debts and provide for the common Defence and general Welfare of the United States. . . .” I don’t think the Founding Fathers expected to make millionaires out of the President and Congressional members. If after the expenses for the priorities are met and there are revenues available then, and only then, can Congress attend to the ‘general welfare’. This borrowing billions of dollars and printing billions more in worthless paper money to feed the bureaucracy is a product of socialist thinkers and bankers.
A government of ‘limited’ powers. The idea or concept that there are ‘implied’ powers is still limited by those natural rights retained by the States in general and the people in particular. As a group, the citizens of the nation have certain ‘sovereign’ political powers. They are limited basically to the areas mentioned above, being political in nature. These are powers that do not interfere with the natural rights of the people as individuals, with the purpose of securing and protecting the rights of the same allowing the people to enjoy their use as long as they do not interfere with the rights of others. This is the purpose of a legitimate government, to secure, not to grant rights to its citizens.
Using the term ‘general welfare’ as authority to increase the scope of government as was done in establishing the department of Health, Education and Welfare now overseeing Social Security, Medicare, Affordable Health Care and other associated programs is looking at ‘general welfare’ through the wrong end of the glass. It outlines an area where government revenues can be spent, and the term ‘general’ is a limitation on the spending. No authority is delegated to Congress or the President to allocate funds for ‘local’ interests. This would apply to the unfortunate catastrophes as experienced by the Gulf coast hurricane Katrina or the hurricane Sandy that hit the coastal areas of the North East. This is what President Franklin Pierce referred to in his veto message to Congress (May 3, 1854) “The decision upon the principle in any one case determines it for the whole class. The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into a novel and vast field of legislation, namely, that of providing for the care and support of all those among the people of the United States who by any form of calamity become fit objects of public philanthropy.
“I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States.”
President Grover Cleveland found the same problem with public charity and the Constitution; “I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.” [Veto message to the House, February 16, 1887] Wasn’t it President Kennedy who in effect said, “ask not what the country can do for you; ask what you can do for the country.”
Senator Ron Paul circulated an account “Not Yours to Give” published in The Life of Colonel David Crockett; remarks to the House by Representative David Crockett as the House was considering an appropriation of money for a widow of a distinguished naval officer, to which he said; “We have the right as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money.” Later, asked by a friend about his remarks, he recounted a meeting with farmer on the subject of appropriating money for charity. When Rep. Crockett questioned why the farmer objected the farmer replied; “The power of collecting and disbursing money at pleasure is the most dangerous power that can be entrusted to man, particularly under our system of collecting revenue by a tariff, which reaches every man in the country, no matter how poor he may be, and the poorer he is the more he pays in proportion to his means. . . .
“So you see, that while you are contributing to relieve one, you are drawing it from thousands who are even worse off than he. . . .
“The people have delegated to Congress, by the Constitution, the power to do certain things. To do these, it is authorized to collect and pay moneys, and for nothing else. Everything beyond this is usurpation, and a violation of the Constitution. . . .
“It is a precedent fraught with danger to the country, for when Congress once begins to stretch its power beyond the limits of the Constitution, there is no limit to it, and no security for the people.”
The thoughts expressed by Col. Crockett in this experience are no longer in the minds of those today in government. The events of Katrina and Sandy are emotional subjects and we are torn with wanting to help and the Constitutional prohibition against appropriating public revenues for such occasions. The revenues of the Nation come from the public at large and ‘taking’ from one citizen to help another is not a principle of our Republic or found in the Constitution. It gives NO authority to the federal government to expand and compel citizens to participate under the threat of taxation as the social programs as found in the ‘Affordable Care Act or of Social Security, which federal program violates the basic rules of contract. Freedom and Liberty are not found here.
Reading over two fundamental historical documents, one on the Monroe Doctrine and the other delivered by President Lincoln at Gettysburg, two principles were addressed. The Monroe Doctrine addresses the expansion of the European powers into the Americas. “It is impossible that the allied powers should extend their political system to any portion of either continent without endangering our peace and happiness; . . .” Following the ideals of our Founders who pledged their lives, fortunes and honor in freeing the 13 Colonies from the grip of English socialism, the Monroe Doctrine expresses that same feeling that the United States was against the expansion of socialism or any other form of dictatorship into this hemisphere, and “are henceforth not to be considered as subjects for future colonization by any European powers. . . .” (1823)
It is interesting to note that the intent of the Monroe Doctrine was to construct a barrier against further encroachment of dictators and socialist policies into the western hemisphere. Needless to say, it looked good on paper, however, socialism is a thought process that knows no barriers except those in the minds of the citizens as they try to understand just what freedom and liberty mean. In our Nation, we have a majority who have forgotten it. Our government is one of the most socialistic systems and it was not achieved by conquest from without, but sold to us by immigrants we invited in over the decades.
Not that the idea is not an honorable one but to make it work you have to ‘take’ from someone else. The parable that best explains the principle of a republic is found in; “you give a man a fish and you feed him for a day; teach a man to fish and he feeds himself for a life time.”
When we speak of ‘slavery’ in America, we reflect on the practice of forced labor basically in the South with the Negro brought over from Africa to labor in the fields. Today we have a different type of ‘slavery’ as the government, with its progressive taxation and social programs, has enslaved those ‘with’ to take care of those ‘without’. It also uses this progressive taxation to build its social programs into areas not designed by the Constitution. It also makes those ‘without’ dependent (slaves) of federal charity, which in turn a large voting block keeping the charitable party in power. The federal bureaucracy is over-come by its obsession with power. And both parties are guilty of this practice.
This cancer has spread over the Nation as the federal government seeks to control the very activities of the life and happiness of the citizens. Back in October of 1989, Time magazine published an article by Michael Kramer on an experience he had in China. The article was entitled, “Free to Fly – Inside the Cage”. The part of interest which Mr. Kramer observed was that; “It was only morning, and along with a score of others, the old man was exercising his birds – by illusion. The men walked and swung the bird cages. The movement is said to convince the birds inside that they are free.” Our government has created an illusion for many who are being educated in the illusion of freedom and the government will take care of them.
Our government educators take about freedom yet they fail to explain what we are free from. Those coming up from Central and South America, are they looking for ‘freedom’? Or ‘liberty’? Reading the news accounts, they are looking for free medical, education, food stamps, voting privileges; government hand-outs. This is the freedom they are looking for. Adding to those who are voting for the government to continue to ‘take’ from those who ‘have’.
If this new generation of politicians are so set on modifying the Constitution, might I suggest that we formulate a new ‘Declaration of Independence’ or a ‘Declaration of Rights’ with the inclusion of a prohibition against the taking control of the property, not only of individual citizens, but also of the States. Demanding that land ownership be returned to the States and the people. Changing feudal title back to allodial ownership of property making the owners into real property owners instead of renters on government land making them care-takers on the land. As it is now, “[a]ll property is held by tenure from the state, . . .” (Black’s Law Dictionary, 6th ed., “Tenure”) There is an interesting word to look up, “tenure:” “Tenure: In feudal law. The mode or system of holding lands or tenements in subordination to some superior which, in feudal ages, was the leading characteristic of real property. Tenure is the direct result of feudalism, . . .” (Encyp. of Supreme Court Decisions, p. 751) If you think you own your property, stop paying the property tax and see who owns it then.
In President Lincoln’s address at Gettysburg (1863), he pointed out that this “new nation” was “conceived in Liberty”. Unlike the message contained in the Monroe Doctrine, closing the door to future expansion of European powers, Lincoln addresses the concept of liberty. At one time, liberty was well understood, but there existed a different meaning held by many as expressed on another occasion by President Lincoln; “The world has never had a good definition of the word liberty, and the American people, just now are in want of one.
“We all declare for liberty, but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor.
“Here are the two, not only different, but incompatible things, called by the same name, liberty.
“And it follows that each of the things is, by the respective parties, called by two different and incompatible names – Liberty.”
Associated with the term ‘liberty’ is the term ‘free’. From his book on ‘Freedom”, Maurice Cranston starts out; “Consider how much — or rather how little — you say if you say you are free. Imagine a meeting with a stranger. You know nothing about him or his predicament. He approaches you and says: ‘I am free.’ You are baffled. Has he just escaped from prison, from his debts, from his wife, from his sins? He has told you he is free, but he has not told you what he is free from. He has confided remarkably little.” When you tell people you are free, think on this; what are you free from? You thank God for living in a land of ‘freedom’ and ‘liberty’. Free from what?; Liberty to do what?
You wouldn’t think that using the term ‘liberty’ would result in different meanings to people; a problem in definition which help precipitate the Civil War. And now we are confronted with the same dilemma as we witness the creation of legislation that is eroding our liberties, such as forced taxation of our property; and taxation as a regulatory measure to control our activity, as in the ACA constructed by the Democratic Socialist party, pushed through by the Obama administration and approved by the Supreme Court. The ‘checks and balances’ written into the Constitution have been destroyed by both political parties as they seek to control all three branches of the government. The destruction of this safety clause is an attack on liberty.
Associated with the preservation of liberty is the concept of equality. This was expressed by Jefferson in our Declaration of Independence; “We hold these truths to be self-evident, that all men are created equal, . . . ” So what does this mean? Milton Friedman gives us an excellent example of what transpires when society undertakes to ‘massage’ the principle of equality; “In the early decades of the Republic, equality meant equality before God; liberty meant the liberty to shape one’s own life. . . .(Then) equality came to more and more to be interpreted as equality of opportunity in the sense that no one should be prevented by arbitrary obstacles from using his capacities to pursue his own objectives. That is still its dominant meaning. . . .” However, the present party in power is pushing for the new and progressive meaning observed by Milton Freedman. “A very different meaning of equality has emerged . . . in recent decades . . . ‘equality of outcome.’ . . . Everyone should finish the race at the same time. Equality of outcome is in clear conflict with liberty.” [Free to Choose]
In the english community we all speak the same language yet we come away with different conclusions. This comes from the ambiguity of many words. The construction of the Constitution is not immune to the problem. “Ambiguity and vagueness crop up in the nonstructural sections of the Constitution. Ambiguous words permit different understanding, while vague words do not allow for much understanding. . . .
“Nothing in the Constitution is more ambiguous in meaning than the ‘general welfare’.” (Leonard W. Levy, Original Intent and The Framer’s Constitution p. 335) Another ambiguous term that has caused much concern in the understanding of the Constitution is the term ‘natural rights’. It leaves wide open the dialog when interpreting the Ninth Amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Or, understanding the Courts when it directs that; “One’s right to life, liberty, and property, . . . , and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” [W. Virginia State Bd. of Educ. vs. Barnette, 319 U.S. 624, 639] “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” [Lucas v. Forth-Fourth Gen. Assembly, 377 U.S. 713, 737
With these safe guards protecting our natural rights, or constitutional rights, as you will, I fail to understand the rational of Chief Justice John Roberts supporting the ACA, in particular the ‘shared responsibility payment’ (tax). You would think those people would know better. Socialism does not recognize the rights of the individual, only the rights of the majority on the theory that the majority knows best.
As I have reiterated several times in the past, there are three standards which guide the meaning of the ambiguous terms of the Constitution. They are (1) sovereignty; (2) delegation of authority; and (3) territorial jurisdiction. Along with the concept of ‘natural rights’ these all work together to define and limit such ambiguous Constitutional terms like ‘general welfare’, ‘necessary and proper’, ‘tax and spend’, and such.
The direction that this Nation has taken over the past century is taking the people into a new phase of slavery. It is not fair to place the burden upon people like Obama and Roberts. The blame is spread across the board, lying mainly at the feet of the populace who elect these people.