(This article has been revised. It was originally posted 1/12/08 9:53 PM)
The
Knowing that the Constitution lists powers of the government and lists some rights of individuals, one should wonder whether it grants the government the power to make any law that does not violate one of those individual rights it lists, or whether it reserves all rights and powers to the people except for those powers it explicitly grants to the government.
Which interpretation sounds like that of the courts and the media today?
Which interpretation sounds like the kind of country you would prefer to live in?
Fortunately, the Constitution directly resolves the issue by stating that any powers not explicitly granted to the government are reserved to the states or to the people.
The 10th Amendment says:
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.
The 9th Amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Unfortunately, the courts do not use the 9th Amendment and rarely use the 10th Amendment. I am aware of a few instances where the Republicans have begun using the 10th Amendment, but Democrats still seem to universally oppose it.
The 9th and 10th Amendments are part of the Bill of Rights, which was added to the Constitution three years after the Constitutional Convention so that the people would be willing to ratify it. The reason no individual rights were listed in the original version of the Constitution was because it was already universally accepted that the people had those rights and more, that future generations would also understand this, and that the Constitution simply did not grant sufficient power to the government to violate individual rights.
Background
The Constitution was created at a time when the
To be fair, wars at that time were somewhat gentlemanly. This was before the concept of “total war” was introduced in the modern era by Abraham Lincoln and the Union Army.
Therefore, the Articles of Confederation were not tested in the context of “total war” (or weapons of mass destruction either). However, they were tested in the context of maintaining the rule of law in
So…
How did the
The Preamble
The Constitution was presented with a one-sentence sales pitch called 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.
Whereas, the Constitution itself exists in 8 separate “Articles” (chapters), the preamble has no designated location within the Constitution. In other words, it is not article one. Nor does it explicitly claim to be part of the Constitution.
The entire preamble consists of one sentence, which says that the authors believed that their act of creating the Constitution (to Replace the Articles of Confederation) was an act that would “form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity.”
The authors were not saying that the government would accomplish these very general goals. The authors were saying that they themselves were accomplishing these very general goals by limiting the power of government to only those specific powers granted in the Constitution. In other words, the way to accomplish these very general goals is through freedom, and thus one way to fail to achieve these goals would be to create a powerful government.
The Constitution promotes the general welfare by limiting government.
Whether or not anyone considers the preamble to be a part of
The preamble is important to mention because the founders apparently did not foresee that today some Americans (e.g. Democrats) would be such strong advocates of big government, so willing to ignore historical precedent, and so generally dishonest, that they would claim the preamble (all by itself) grants vague and sweeping powers to the government to achieve those goals listed in the preamble, which the founders hoped would be achieved primarily by limiting government.
I think “promote the general welfare” is their favorite. Therefore, when the Democrats take money from some people and give it to others, they refer to this practice as “welfare” in an attempt to imply that it is somehow authorized by the Constitution. In fact, I have observed partisan journalists and Democratic politicians argue that this practice is not merely authorized by the Constitution, but that it is mandated by the Constitution.
Let’s now examine all of the powers granted to the Congress by the Constitution.
Article 1, Section 8
I have included the entire text of Article 1 Section 8, which contains all of the powers granted to Congress by the Constitution:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
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 a 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 offenses 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, dockyards, 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.
Using its Monopoly to expand its Monopoly
Like the preamble, Article 1 of the Constitution itself has a few sentences that are rather clear in intent, but whose wording is not sufficiently careful to prevent politicians from claiming that it means something else.
For some reason, politicians always interpret the Constitution to grant more power, rather than less power, to the government. Did I mention that most politicians are lawyers? The government thus uses its monopoly on the power to make, enforce, and interpret laws – to expand its monopoly power.
The Necessary Powers Clause
The final power in section 8 is highly vulnerable to politicians because it grants Congress the power, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers …”. Now consider that these “foregoing powers” are few and specific, and thus this “necessary powers” clause is actually quite limited. In fact, the necessary powers clause adds no power at all, because the Congress obviously has the power to make laws to carry into execution its explicit Constitutional powers. The necessary powers clause actually reduces the powers granted to the Congress because it requires that such laws also be both necessary and proper.
Today the “necessary powers” clause is often interpreted as the power to make any law that Congress claims is necessary and proper, but obviously, such an interpretation would give Congress almost unlimited power. Clearly, the founders, with their well known fear of government and love of freedom, would never have explicitly granted such unlimited power to Congress, but even if we did not know the intent of the founders, we can easily defeat the modern fascist interpretation by noting the that the Congress only has the power to make all laws which shall be necessary and proper “for carrying into execution the foregoing powers.”
The Commerce Clause
Perhaps the most abused clause in section 8 is the power: “To regulate commerce … among the several states …”. The “commerce clause” is interpreted today as granting Congress absolute power to control, confiscate, or ban any portable object because portable objects could potentially cross a state border. Also, Congress now claims absolute power to control any object or personal behavior that could be construed to have an impact on the economy (commerce). Such an interpretation gives Congress almost unlimited power.
Clearly, the founders, with their well known fear of government and love of freedom, would never have explicitly granted such unlimited power to Congress, but even if we did not know the intent of the founders, any honest person would have to admit that the commerce clause only grants Congress the power to resolve commerce disputes between the states.
The Power to Tax
Another power in section 8 that is vulnerable to politicians is the first one, which says:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
So why does the power to tax even mention the “general welfare”?
The power to tax mentions the “general welfare” because taxes were considered evil back then, and thus without the explicit power to tax, the people might have demanded that the Congress exercise its powers using donations. However, in addition to providing for the general welfare by limiting government and thus protecting the people from the power of government, the Constitution also provides for the general welfare by granting a few necessary powers to Congress, and the power to taxes would guarantee that the Congress was able to carry into execution those few powers granted by the Constitution. Therefore, the founders added a sales pitch about how taxes would enable the Congress to pay debt, and exercise its few explicit powers, which defending the United states, and providing for the general welfare. Taxes were thus sold as a necessary evil.
Clearly, the founders, with their well known fear of government and love of freedom, would never have explicitly granted Congress the power to “provide for the general welfare” because that would have given Congress unlimited power.
Also, consider that the modern interpretation of the “general welfare of the United States” is that it means the “general welfare of the people”, but the Constitution always clearly distinguished between “the people”, “the states”, and “the United States”. Therefore, this sales pitch about “the general welfare of the United States” must be referring to the maintenance of the federal government and not to directly helping individuals.
The 9th Amendment
The 9th Amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
All of the rights in the Bill of Rights (the first ten amendments) protect the individual from the power of government, and the 9th amendment is clearly intended to empower the Supreme Court to recognize additional protections of the individual from the power of government. For example, the Supreme Court has recognized a right to privacy and a right to abortion, and it may someday recognize a right to anonymity and a freedom of association. A freedom of association would prevent the government from telling us with whom we must or must not associate.
For reasons unknown to me, the Supreme Court never actually bases any decisions on the 9th amendment, but I predict that will change. I predict that the justices appointed by Barack Obama will use the 9th amendment to actually expand the power of government.
Consider that Democrats are claiming that free health care is a right.
If you are familiar with the Bill of Rights, then you should immediately conclude that a right to health care is fundamentally different than all of the other rights in the Bill of Rights. Whereas, a right is a protection from the power of government, free health care requires government to either force doctors to serve us, or it requires government to force us to pay enough taxes to persuade doctors to cooperate.
Forcing doctors to serve us is too obviously a form of slavery, but forcibly taking the fruits of one man’s labor and giving it to a doctor to persuade him to serve another man is less obvious.
If someone else has a right to the fruits of your labor, then you do not have a right to the fruits of your own labor. How can someone else have a greater right to the fruits of your labor than you do? How is that not a kind of slavery?
Clearly, any right that requires the confiscation of the fruits of anyone’s labor; whether a doctor or a taxpayer, is not a right at all.
Why do we care?
Clearly, the founders, with their well known fear of government and love of freedom, would never have explicitly granted Congress the power to “promote the general welfare” or to make “any law” that Congress claimed was “necessary and proper”, because either would have given Congress absolute power. However, this is exactly the interpretation I hear from the more fascist, progressive, or leftist members of the Democratic Party. Why do they want the Congress to have absolute power anyway? Could they really fear and hate so many of their fellow Americans so much?
In addition to the necessary-but-evil power to tax, section 8 lists all of the specific powers granted to Congress (another necessary evil), which are the means by which the Congress can "provide for the common defense and general welfare". In other words, the Constitution promotes the general welfare by creating a congress with these few specific powers, and more importantly, by limiting the Congress to only these few specific powers. To a large extent: The Constitution promotes the general welfare by limiting government.
The modern interpretation of these the Constitution grants unlimited power to the Congress except for those few rights clearly stated in the Bill of Rights, and of course those rights are subject to the interpretation of the Supreme Court, who are appointed by a politician. Such an interpretation obviously contradicts Article 1, the 9th and 10th amendments, and the intent of the founders.
Perhaps some Constitutional Amendments are needed to fix these clauses and protect us from the authoritarian left. Until then, educating people about the reality of the Constitution is the only antidote for misinterpretation.
The Promise of Reality is Freedom.
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