Jurisdiction and the Division Of Power

What do we want our government involved in?  How do they get involved?  How can the federal government be involved in deciding what I purchase at the store, what I purchase at all, watch for my Christmas blog on the clauses – General Welfare, Commerce, equal protection etc…

People miss that the “Boston Tea Party” was truly about government mandated monopolies, the only real monopolies.  The colonists were basically forced to buy their tea through the British and the East India Tea company as a bail out (hmm sounds familiar).  It was about Jurisdiction and the reach of the British crown, it was a reaction against decisions made by people in faraway places that we could not control, “taxation without representation.”   The tax act actually made the tea cheaper, read more here: http://www.unpopulartruth.com/2009/04/boston-tea-party.html

Interesting side note:  The tea party was not about destruction and mob rule, it was civil disobedience, the only destruction was a pad lock that was actually replaced the next day.

So, our representative republic was designed around two fundamental premises, assuming a need for government which is different subject all together.  The first is a republican form of government guaranteed by Article IV section 4 of the constitution.

Division of power
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

  • A republic – is a form of government in which power resides in the people, and the government is ruled by elected leaders run according to law (from Latin: res publica),

In Federalist 10, Madison explains republics, his readings on republics and how the constitution defines the American republic.   A few republics to read and learn about, there have been several; the Roman republic, successful in the time between the kings and the emperors and the German Weimar republic.  Like most republics these devolved into empires.  Growing and collapsing on the power, ultimately losing the constraint of jurisdiction and division of power and instead becoming monolithic power centers controlling large groups of people without their consent.

Our founders solution to prevent the ultimate collapse of the republic.  Division of power or layers of republic.  Article II of the Articles of Confederation already established sovereign states after the revolution. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. This article is almost the exact text of the 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.

  • Federalism – The division of sovereignty between states and the federal government

The second premise was jurisdiction and constraint of power.  What the new federal government could do.

Jurisdiction
The goal of the constitution was to define the powers and jurisdiction/reach of the new federal government.  There are enumerated powers divided between the legislative, executive and judicial branches of the government.  Article I section 8 enumerates these powers.  It is worth a review:  http://www.archives.gov/exhibits/charters/constitution_transcript.html

There are specifically national things we need a central government to do.  A face for the rest of the world, an international central authority for the united states and our general national infrastructure, but, it is not a national government!  It is outward facing, not internally focused.  It does not expressly rule over the people, the states do.  Section 9 immediately following, enumerates things the new government cannot do, even the original 10 amendments, the “Bill Of Rights”, are further restrictions of the enumerated powers.  Interesting that in Section 9 the constitution said “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.“, really inferring a tax on the states paid by the people not a direct tax on the people, but this constraint was removed by the 16th amendment. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”  So, bypass the states and collect directly from the peoples income.

The only opening for the federated government to act and bypass state legislatures was through law needed to execute the powers granted to the government.  This can be a little squishy, but our representatives make the law and the constitution must have previously granted the power.  See my other post on the Rule Of Law.  We can also amend the constitution to grant the power if absolutely necessary.  Section 8 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.” So, our elected representatives can make laws to grant the federal government authority and jurisdiction. These laws must be approved by the senate, which originally represented the states, signed into law by the president and can be reviewed to determine the constitutionality by the supreme court.

That is Jurisdiction.  The scope over which a government can preside.   The constitution clearly defines the scope and boundaries of our federal government and leaves the rest of the power to the states.  Police Power, criminal law, direct power over the people.

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.” – Thomas Jefferson

Putting the two together
Our founders spoke repeatedly about knowing the character of our leaders.  Making sure men of integrity were elected and representing us.  Making sure we elected people who represented our views and did what they said they were going to do.  The best way to make that happen is to know the people who have the most power in our day-to-day lives.  Our city and county councilmen, our city and county sheriffs, our state political leaders.  We need to know who they are and ensure they do not lose the power to make the rules by which we live and they protect our life, liberty and property.  We will best know them and know they are making good decisions if they are our friends and neighbors, live in our neighborhood and live by the same laws as you and me.

We must not “make a federal case” out of everything.  We must be wise in those decisions, it is a slippery slope and the power granted to the federal government is next to impossible to take back.  The 17th amendment changed the election of senators from the state legislatures to the people “elected by the people thereof,” So they no longer represent the interests of the state and state sovereignty, but the passions of the people.  It may have seemed more democratic, better representation, but it gave away the state power.  At some level the senate no longer looks out for the best interests of the republic, but of the interests of the people that will get them re-elected, keep them in power.  It is one less different kind of check on a federal government.  The house was a proportional representation of the people, the senate was an equal representation of the states.

People in faraway places, like the British crown, the president of the united states, people in Washing D.C., in general do not understand our best interests.  They are hard to hold accountable, we cannot know their character, they are becoming a “ruling class.”  We must keep power close to home.  That is why jurisdiction is so important.  We want to limit the scope of power and the distance from which it is executed.  We keep the power close by dividing it between the federal and state governments and even the state and city governments.

Conclusion
If you believe that a council in a distant place was needed to end slavery, help people less fortunate, the war on poverty, the war on drugs and end child labor, that we the people were not capable of that, what does that say about us? Do we really want someone else to do what we think is right?  Forced charity is not charity at all.  If we give away that power, what do we do when it is turned against us?  If we allow others to do the hard work for us, we lose our power, we just give it away!  There are always unintended consequences, we cannot plan for and see them all.  We must guard our power and our liberty, it is ours to lose.  We are giving it away and we really are no better off for it.   We are becoming more divided, less engaged and more ruled than ever.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s