The Founders
Envisioned A Streamlined Government
Gary Gerard,
dumbhoosier.com
There's a lot of talk among tea party types about a return to
Constitutional authority.
That's a good thing because I think the 10th Amendment has been pretty
much gutted over the years.
That's the one that 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."
Now, I understand the Constitution is a living, breathing document. I
am far from a strict constructionist.
But over the years there have been these crazy interpretations of other
parts of the Constitution that have allowed Congress to circumvent the
very straightforward 10th Amendment.
Most notably misinterpreted, perhaps, is Article I, Section 8, Clause 3
of the Constitution which simply states: "The Congress shall have power
to
regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes."
It's called the Commerce Clause and the Supreme Court has used it to
allow the federal government to regulate, well, virtually everything.
With regard to businesses, the reasoning goes something like this: If
you make a product and sell it, that's commerce, so the government can
regulate it.
And it goes way beyond that.
If you own a home, the government can regulate who you can rent it to.
If you own a business, the government can tell you who and how you hire
and fire.
And when it comes to guns, the federal government clearly infringes on
a right that the Constitution clearly says "shall not be infringed."
Why? Because guns are sold across state lines. That's "commerce," you
see.
It's nonsense.
Clearly, the Founders' intent in writing the Commerce Clause had to do
with trade. It gave the government the authority to intervene in trade
disputes between the states and foreign governments, between the states
and Indian tribes and between the states themselves.
Here's what Thomas Jefferson had to say about the Commerce Clause:
"[The commerce clause] does not extend to the internal regulation of
the commerce of a State (that is to say, of the commerce between
citizen and citizen) ... but to its external commerce only, that is to
say, its commerce with another State, or with foreign nations, or with
the Indian tribes."
Here's what James Madison had to say about the Commerce Clause:
"It is very certain that [the commerce clause] grew out of the abuse of
the power by the importing States in taxing the non-importing, and was
intended as a negative and preventive provision against injustice among
the States themselves, rather than as a power to be used for the
positive purposes of the General Government."
See, to the Founders, "commerce" meant trade. The only other mention of
commerce in the Constitution is in Article 1, Section 9, Clause 6:
"No Preference shall be given by any Regulation of Commerce or Revenue
to the Ports of one State over those of another: nor shall Vessels
bound to, or from, one State, be obliged to enter, clear, or pay Duties
in another."
Clearly and certainly the Founders were talking about trade.
In fact, the word commerce is used a bunch of times in the Federalist
Papers and it always relates to trade between merchants and shippers.
It never has anything to do with manufacturing, agriculture or anything
else for that matter.
Next in the importantly misinterpreted clauses is the Necessary And
Proper Clause found in Article 1, Section 8 Clause18.
It says: "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."
This has been interpreted over the years to mean that Congress can
pretty much make any law it wants.
But even a casual reader can see the clause clearly and strictly limits
Congressional power. Congress can only make laws necessary to help
carry out other laws and powers granted in the Constitution.
For example, the 16th Amendment gave Congress the "power to lay and
collect taxes on incomes ..." Well, to be able to collect those
constitutionally granted taxes, it would be "necessary and proper" for
Congress to create the Internal Revenue Service.
"General Welfare" and "Supremacy" clauses also have been - in my view -
sorely misinterpreted.
Article I Section 8 Clause 1 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."
Over the years this has been interpreted to mean that Congress can do
anything the Supreme Court doesn't forbid or that Congress has no
limits as long as it believes it is serving the "general welfare."
That's how we end up with the myriad departments, agencies and
bureaucracies that Congress has created over the years. It's advancing
the "general welfare."
Madison:
"If Congress can employ money indefinitely to the general welfare, and
are the sole and supreme judges of the general welfare, they may take
the care of religion into their own hands; they may appoint teachers in
every State, county and parish and pay them out of their public
treasury; they may take into their own hands the education of children,
establishing in like manner schools throughout the Union; they may
assume the provision of the poor; they may undertake the regulation of
all roads other than post-roads; in short, every thing, from the
highest object of state legislation down to the most minute object of
police, would be thrown under the power of Congress... Were the power
of Congress to be established in the latitude contended for, it would
subvert the very foundations, and transmute the very nature of the
limited Government established by the people of America."
Hmm, how clairvoyant was that guy?
Jefferson:
"Congress has not unlimited powers to provide for the general welfare,
but only those specifically enumerated."
Article 6, Clause 2 says:
"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; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary not
with-standing."
This "Supremacy Clause" is what Congress leans on anytime somebody says
the federal government is exceeding its authority.
It's been interpreted to mean that any federal law - even a regulation
of a federal agency - trumps any conflicting state law.
But that's totally bogus.
Take a minute and read it. It clearly states the only "supreme" laws
are those in "pursuance" of the Constitution.
If the federal government enacts laws outside, "This Constitution, and
the Laws of the United States which shall be made in Pursuance
thereof," those laws are unconstitutional.
I don't pretend to be a Constitutional scholar, but it seems to me the
Founders intended a lot more streamlined federal government than we
have today.
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