Federalism (A Constitutional Republic)

I would bet that most people do not understand the form of government left to us by our founders.  Perhaps most don’t have the time or interest to concern themselves.  I will go a step further and say that far too many do not realize the difference between a federal and national government.  The difference is significant.  The government sitting in Washington D.C. is our federal government meant to provide a single face to other nations, protect the states from foreign threats and keep the peace between the states (not within the states) matters of interstate vs intrastate concern.   I speak to that in more detail in my post on jurisdiction.  It is evolving into a national government, a single power center over the people.  Concentrated power in a distant place that our founders tried to warn us about and as protection from, gave us our constitution.

Our founders did not want a democracy, they clearly understood the dangers of a pure democracy.  They studied various forms of government and the history of governments, especially the more recent (at the time) republics.  They reviewed the strengths and weakness and had great debates on what would be the best form of government for our new collection of states and even the state governments themselves.  They chose a large representative republic with the power over the people reserved to the individual state governments.  (often referred to as states rights, but more importantly it is divided power)

We are union of state governments.  Through the ratification of the constitution, the states agreed to be part of the union.  They agreed to a limited set of powers to be no longer handled by them but by this new federal government.  The constitution defines the limited role of the federal government and provides it with the enumerate powers necessary to protect and preserve the union.  Never to act directly on or control the people, that was the role of the state.

“The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded. It is the one immortal tribute of the United States to political science, for state rights are at the same time the consummation and the guard of democracy” – Lord Acton, History of Liberty

As the preamble to the constitution says: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.

The goal of the constitution was to take some power from the states, most enumerated in article I, section 8, to protect the union, not the people, and present a unified face to the rest of the world for trade and treaties etc…  It wasn’t until around 1913 with the 16th and 17th amendments, along with the growth in the progressive movement, that we started tearing this idea down with the ability to directly tax the people and the popular election of senators, senators now representing people instead of states.  Who watches out for the states best interest in Washington now?

Article I defines congress, the body that can make law.  Presidents are executives, they execute the law, so Article I is the most critical in determining power.  You can read more on this in my post on Jurisdiction and the Division of power or better yet “Power divided is power checked” – Jason Lewis

The founders did not believe in a centralized, one size fits all nation government, they did not believe in pure democracy.  Democracy is never once mentioned in the constitution.

Article IV section 4 of the constitution:
guarantees to every state in this union a Republican form of government

James Madison, Federalist 10
“Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths…”
“We may define a republic to be … a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.   It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.”

Here is some thoughts on federalism: (unknown author)

  • the best curb on democracy. It assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.
  • The only barrier to Democracy.
  • It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.

Democracy:

  • A government of the masses.
  • Authority derived through mass meeting or any other form of “direct” expression.
  • Results in mobocracy.
  • Attitude toward property is communistic–negating property rights.
  • Attitude toward law is that the will of the majority shall regulate, whether it be based upon deliberation or governed by passion, prejudice, and impulse, without restraint or regard to consequences.
  • Results in demogogism, license, agitation, discontent, anarchy.

Republic:

  • Authority is derived through the election by the people of public officials best fitted to represent them.
  • Attitude toward law is the administration of justice in accord with fixed principles and established evidence, with a strict regard to consequences.
  • A greater number of citizens and extent of territory may be brought within its compass.
  • Avoids the dangerous extreme of either tyranny or mobocracy.
  • Results in statesmanship, liberty, reason, justice, contentment, and progress.
  • Is the “standard form” of government throughout the world.

I believe many of the current ailments of government are based on these concepts being forgotten, ignored or even purposely pushed aside.

We have centralized too much power in Washington D.C., in people that we do not know their character or principals, have no influence over and they have created their own bubble of reality where votes can be bought and sold with no regard to the consequences to the voters and no real way to be held accountable.  Most voters feel helpless to this system.  The money involved and the distance between makes influence impossible.  Simple campaign finance reform and term limits will not be enough and will not make a difference.  Only dividing their power and keeping it from them will help through the checks and balances of the constitution, one being the role of the state, will get us on the right track.

To that point we have made a federal case out of everything.  We are nationalizing the power, creating a democracy of mob rule, the majority 51% can decide how the 49% will live.  There are no competing interests (the states) to determine if there are better laws or ways to govern.  So we are becoming divided amongst ourselves and in turn giving more power away to the central government.

Our national congress is such a small percentage of representation for me the average citizen, most would agree they do not feel represented at all, has power and influence directly on my day to day life and with little or no input.  That is not a representative republic.  If I don’t like the laws I have no way to associated with like-minded people and live where the laws better reflect my values.

We need term limits now more than ever.  People are voted in on money and name recognition and incumbents are reelected time and again, not because they have served us well.  It has become about power and not liberty.  We need to limit time in office and return politicians back to society to live under the laws which they have created.

Our federal government is borrowing money and spending it on us and their financers to buy more votes and power.  There really is no way to stop them other than to constrain their power.

Conclusion
Just after the completion and signing of the Constitution, in reply to a woman’s inquiry as to the type of government the Founders had created, Benjamin Franklin said, “A Republic, if you can keep it.”

First we have to understand what that means.  Then we MUST defend it.  That does not necessarily mean to take up arms against the enemy, but to insist our governments and our politicians follow the intent of the constitution, limit federal power and any centralized power, especially far removed from the people, and allow them to only do what is necessary to protect and foster liberty.  We must rethink our constitution as a constitution of liberty, and the protection of liberty.  That means we are in charge and our government exists to support us and protect our liberty.  Not protect us as individuals.  That is our job and we better start doing it!

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The Clauses – part I

Christmas may be over, but soon the 114th congress will be in session and the clauses will be used once again to expand the jurisdiction and help nationalize our federal government.

By clauses I am referring to:

  • General Welfare
  • Commerce
  • Equal protection
  • Establishment
  • Full faith and credit
  • Due Process
  • Supremacy

These are just a few.  The constitution is broken down into Articles, Sections and Clauses.  But the clauses must remain in context to understand the real meaning.  It seems very popular to use them out of context to make a case, make a federal case out of a topic of interest or cause one would like to see changed.  But it is most often, by convenience, a misreading of the constitution, a way around its restrictive, enumerated powers.  In general, a way to give the federal government jurisdiction over the issue and move the power away from local governments to the national level, to nationalize our federal government, create a one size fits all set of laws.  This is a dangerous precedence, one often allowed through ignorance of the constitution and federalism.  While you may think it’s great for your cause or issue when your party is making the claim, it will allow another party to make the same claim while taking an opposing view to yours.  It is a slippery slope and very often irreversible.  See my previous post on Jurisdiction and the Division Of Power, our founders planned for this by giving us federalism and a republic with dual sovereignty, sovereignty to our individual state and to the United States.

So let’s try to put the above clauses into context.  I personally prefer to error on the over restrictive side.  If there is a restriction at the federal level, it can be corrected or handled by state or local governments.  The states can be mini laboratories of democracy.  We can see how the practices work in other states before we change the law in our own state.  We also have options, an out, we can vote with our feet.  We can move to live under the laws we create and agree to.

“Laboratories of democracy” – is a phrase popularized by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann to describe how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939

General Welfare
The General Welfare clause shows up twice in the constitution.  In 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 defence, 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.

And later in Article 1, Section 8 (in the enumerated powers)

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Note, Section 8 continues on to further enumerate the powers given to congress.  Section 9 further refines that power by restricting specific powers and Section 10 presents restrictions to the states.  But “general welfare” is in context of the union.  “In order to form a more perfect union and to provide a common defence and general welfare of the United States.”  The only time individuals are mentioned and it is still in a context of the total people of the United States is “Secure the blessings of Liberty to ourselves and our Posterity”   So the “General Welfare” is the security and liberty of the states.  To ensure that the states can continue and thrive to protect our life, liberty and property.  If the goal was to give up the power of the states, the states would have never ratified the constitution.

Also note that the start of Section 8 referenced above is also known as the “Spending Power”  Through the collection of money to pay debts, provide for the common defense and general welfare, congress has the power to tax and spend.  So, putting items in the scope of general welfare for spending purposes, increases the power of congress.  If congress funds it, congress can control it.

James Madison expressly said The Constitution does not give a general grant of legislative authority to Congress! – Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power.

Following the opening of Section 8 are approximately 20 enumerated powers granted to congress to carry out its “mission.”  as James Madison defended in Federalist 41:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

Commerce
Article I, Section 8 says “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  Generally taken to mean interstate commerce, foreign commerce and Indian commerce.  Commerce between two people in the same state are outside the jurisdiction of the federal government.  Furthermore, while it may even effect the greater commerce among the states, it is still not commerce taking place between or among states.  All important distinctions.  It would be very easy and this has been done many times over, for the federal government to get involved in intrastate commerce, therefore overreaching its power and nationalizing laws best dealt with by the states.  Never a good idea, even if you agree with the law being passed.  Never ever be ok with giving power away to a centralized group in a distant place.

Article I, Section 9 also says “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”  This does not protect the commerce of a state, it only stops the federal congress from favoring one state over the other, one port over another.  It also unites the states as a single entity for commerce.  Again, Section 9 is about things that congress cannot do, the restriction of power.  (thus protecting state’s rights and our liberties.)

Here is an excerpt from Wikipedia about a famous commerce clause case:

In Wickard v. Filburn (1942) the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat. The Court found that Congress could apply national quotas to wheat grown on one’s own land, for one’s own consumption, because the total of such local production and consumption could potentially be sufficiently large as to impact the overall national goal of stabilizing prices. The Court cited its recent Wrightwood decision and decided that “[w]hether the subject of the regulation in question was “production,” “consumption,” or “marketing” is, therefore, not material for purposes of deciding the question of federal power before us.” The Court re-iterated Marshall’s decision in Gibbons: “He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes.” The Court also stated that “[t]he conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.” http://en.wikipedia.org/wiki/Commerce_Clause

So, this extended congress’s power to situations that had an effect on interstate commerce even when no interstate commerce had occurred.  Again, this may have felt like a good idea but, (I do not believe it was and do not feel that it is the federal governments job to stabilize the wide fluctuations in the market price for wheat) there are unintended consequences and it is hard to limit power when the test is “does it impact” rather than “is it” Interstate commerce.  There are many federal laws and regulations that are deemed constitutional because they are trying to limit the “impact” on interstate commerce.  By whose measure?  Using what specific enumerated power?

The following link has a list of famous Commerce Clause cases.  While the goal and outcome of the case may be admirable, using the commerce clause to give congress jurisdiction is a reach in many of the cases, see what you think, or how you read them now, knowing this.  Remember once the power is given, the jurisdiction expanded, precedence set, it is hard if not impossible to reverse.  http://www.lawnix.com/cases/commerce-clause.html

Many of F.D.R’s new deal programs were being struck down by the supreme court as unconstitutional based on the commerce clause and a more strict reading of the constitutional intent.  In 1936 F.D.R set out to “pack” the supreme court with his “Judicial Procedures Reform” bill of 1937 in which he could basically appoint an additional justice to the court, up to a maximum of six, for every member of the court over the age of 70 1/2 years.  This could have expanded the bench up to 15 justices, the constitution does not prescribe the makeup of the supreme court.  The bill was held up in the senate judiciary committee.  Meanwhile the decision rendered in the West Coast Hotel Co. v. Parrish case in favor of the new deal was released and seen as a retreat by the justices and became known as “The switch in time saved nine.”  There were many cases that followed, greatly expanding congresses power, specifically using the commerce clause.  Even though the actual power was not granted in the constitution.  Just as Madison claimed was not possible or intended and concerned his adversaries.  Just as other powers were expanded with these clauses taken out of context.

I will cover the other clauses in the next post.