The Clauses – part III

In the final installment of this series I cover the Establishment, Supremacy and Full faith and credit clauses.

The First amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress cannot pass laws respecting an establishment of religion.  Remember the constitution only applied to the new federal government and new congress.  There were at least 6 states that had established religions when the constitution was ratified.  The constitution would not have been ratified by the states with established religions if they would have been forced to disestablish their religion.  In fact some think the amendment was to keep the new congress from disestablishing the states religions.

There is debate around incorporation doctrine that the 14th amendment and the due process clause only incorporates individual rights.  For example, the second part of this clause, the free exercise thereof, by an individual.  But preventing a state congress from establishing a religion is not an individual right.

We need to be very clear on when religion is being established vs. allowed to be practiced or the free expression thereof.  A city can put a Christmas tree or a manger or any other religious symbol in the town square, that is not establishing a religion.  Only in denying certain religious symbols is it in the realm of establishing, especially denying all but one denomination’s symbol.  I personally think it might be best if the city does not perform the activity at all, but does allow the activity by its citizens.  There is no constitutional question in the latter case.   It is even debatable that it applies to the state to begin with.

We know the framers of the constitution were not in favor of incorporation of the constitution to the states.  There are specific enumerated state restrictions in the constitution, mainly to ensure that power was given to the new federal government.   James Madison proposed a negative or veto power for the new congress on state laws and that never made it into the final draft.  I think Madison felt that we would have great statesmen in the federal government that could protect liberties and provide equal protection of the laws by placing a negative on a bad state law.  But it was decided, wisely I believe, that it was too much power to grant the federal government and I am guessing they could imagine the abuse.  I am glad it does not exist.  So, they did not find it wise for the federal government to be involved in state law except where expressly stated.

Note; there is no such wording as separation of church and state in the constitution.  The phrase “separation of church and state” in this context is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper.  The constitution does not say we need to keep them separate.

But we must allow the public to define morality, right from wrong, guide their cities and neighbors as they see fit and agree to.  We do not want that legislated by the government, not the federal government for sure.

Some food for thought:
“No government can continue good but under the control of the people; and . . . . their minds are to be informed by education what is right and what wrong; to be encouraged in habits of virtue and to be deterred from those of vice . . . . These are the inculcations necessary to render the people a sure basis for the structure and order of government.” – Thomas Jefferson

“…if the citizens neglect their Duty and place unprincipled men in office, the government will soon be corrupted; laws will be made, not for the public good so much as for selfish or local purposes; corrupt or incompetent men will be appointed to execute the Laws; the public revenues will be squandered on unworthy men; and the rights of the citizen will be violated or disregarded.” – Noah Webster

Article 6 of the constitution says: (paragraph 2) 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 notwithstanding.

A few keys points.  There are restrictions on states in the constitution, most in Article 4 and Article 1 section 10.  These restrictions give power to the federal government and remove it from the states.  E.g. article 1 section 8 says “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” Our Federal government acts as a single entity to the world outside the states and needs power to act on each states behalf.  The clause talks about treaties as well.  So, if the U.S. enters into a treaty with England, all states must abide by it.  There would be too much chaos if foreign nations had to negotiate with each state.  Also laws made to implement the powers of the constitution also become national laws of the land, keeping in mind that power is limited.  This does not grant power to the federal government to make rules to regulate the behavior of the citizens.  They only have enumerated powers in which to act and most of them do not give the federal government power over the individual.  One of the few places this power exists was granted in 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. Which I believe was a mistake and part of the beginning of the end of federalism.  Followed quickly with the 17th amendment, future topic, along with Nullification.  (The states ability to nullify unconstitutional federal laws)

James Madison in Federalist 44 talks about this clause extensively concluding with:
It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions.

Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.

So, the federal government has a constitutional role in creating laws that can bind states, but the federal government is constrained in power by the constitution and the states that put the officers of the federal government in place.  Even the paragraph says laws made… …in Pursuance thereof. Again, be careful when giving away power and rights, I guarantee it will be next to impossible to get them back.  Especially the further away they are given.

Finally, Full faith and credit.  Article 4 section 1 says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

This clause applies to judgments, not laws.  One state’s laws do not apply to another, but a judgment rendered in a court in one state can be governed by the federal government in its proof and application in other states.  Congress is granted jurisdiction and due process to be involved.

At the Philadelphia Convention (the constitutional convention), James Madison said that he wanted to supplement that provision in the Articles of Confederation, to let Congress “provide for the execution of Judgments in other States, under such regulations as might be expedient.”

In Federalist 42 Madison explained:
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.

Again, no power to apply state laws across state lines, or control the actions of a state with regard to the treatment of its own citizens.  It allows the prescription of how to prove the acts, records and proceedings.  And it allows for the jurisdiction in execution of the judgments across state lines.  The federal government generally does have jurisdiction when maters cross state lines.

Again, the constitution provides enumerated powers to our federal government.  They are specific and limited.  While it might be convenient to use one of these clauses out of context to allow the federal government to exceed its power and legislate in a manner we might like, we may even find prudent, It is a dangerous precedent and releases the constitutional constraints that government can then use in ways unseen, in a manner you do not like.  Unintended consequences!  The founders were wise to constrain federal power. “ 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

If we find it necessary to grant the federal government more power, we must follow the process in the constitution, Article 5 another future topic, to deliberately amend the constitution.  Let cooler heads prevail, let’s have that debate first.  We must always be vigilant and protect our liberty, or we will wake up to find it gone.


The Clauses – Part II

In the last post I wrote about the General Welfare and Commerce clauses.  This post I will cover Equal Protection clause and Due Process.  I am guessing that will take us many places.  Again these clauses are used to force national laws onto the states, increasing federal jurisdiction, reducing the division of power and creating one size fits all laws with very limited ability to change them, thus reducing liberty.

The Equal Protection clause is found in in Section 1 of the 14th amendment.  Do not forget that our constitution is a document of negative rights, it takes rights away from us, we hold all the rights, and grants them as enumerated powers to the federal government.

The second paragraph of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Section 1 of the 14th amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is a lot in those words to digest.   First declaring all persons born or naturalized in the United States, Citizens.   Then protecting the privileges and immunities clause first stated in Article 4 Section 2 of the constitution:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

James Madison wrote in Federalist 42:
“those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State….”

While this clause is vague, a few things to remember.  We own our basic rights, they are not granted to us by our government.  The constitution originally did not apply to the states.  It defined the federal government.  With the 13th, 14th and 15th amendments and in the 1920’s “Incorporation Doctrine” the courts have found the bill of rights can apply to the states as well.  That being said, “privileges and immunities” has never been applied to laws between a state and its own citizens, how a state treats its own citizens.  Furthermore, it does not mean laws of one state apply to/in other states.  Again, this could be abused to create a one size fits all law in one state and make it a national law.  But that has not been done, yet.

The clause means that the rights of a free citizen in a state apply to all who become under the jurisdiction of that state even if not a resident.  It also means that something against the law in your state, but not the visiting state, does not apply to you when you are in the jurisdiction of that state (as Madison said in Federalist 42.)

It has been called the right to interstate travel, it allows a citizen of one state to be a citizen of another state.  It prevents discrimination against people from out of state.  But only with regard to basic rights.  Remember, liberty, freedom and our fundamental rights are what is in question.  This also has the effect of unifying all citizens in the different states into a single nation.  You do not need your papers to cross the border into another state.

Finally we get to due process and equal protection.  Equal protection isn’t about equal rights.  It is about due process with regard to basic rights.  Life, liberty and property.  The application of punishment or protection of a state’s laws must be applied equally to all people within jurisdiction of that state (born or naturalized in that state).

The 5th amendment also states:
No person shall be … nor be deprived of life, liberty, or property, without due process of law

The 14th amendment, applying to the states, no state shall…

I ran across this paragraph in my research.  (from a law school none-the-less)
Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional.

There are some good points here, an interesting clarification on the topic, but one glaring point that I wanted to mention.  “When a state grants a particular class of individuals the right to engage…”  Our government does not grants us rights.  It protects the rights we have.  It can deny a right to certain individuals by following due process and equal protection of the law.  But it does not grant.  That really bothers me.

To the “particular class of individual” or “deciding when a classification is unconstitutional.”  Things get interesting quickly.  None of these concepts are mentioned in the constitution, so this really is not a constitutional question.  We must be very careful not to put words into the constitution.  It starts granting power where none was given, it sets a precedence if you will.  If we want to grant power we must follow the amendment process, due process.

The government can provide benefits or deny benefits to citizens, again based on equal protection of the law and due process.  The law is by nature discriminatory, people under the age of 18 are not allowed to vote.  18 is an arbitrary but equally applied classification.  But if we allow the federal government to start defining classifications, especially based on constitutionality, then we are arbitrarily in the opposite direction determining how laws are applied, arbitrary being the key word.  A different kind of discrimination.  Maybe one we like and are ok with, for now…

So we must allow our states to make the laws we feel are appropriate, we are willing to live by.  Our leaders, especially at the federal level can use their “bully pulpit” and position of leadership to guide us in our judgment to better laws, help us to see the errors in our ways and correct bad laws.  They can suggest changing bad laws.  To me a real statesmen guides us with wisdom.  Does not dictate with the pen and pages upon pages of legislation.

Our politicians, representatives should provide leadership on right and wrong, but should they be able to control right and wrong?

I was challenged writing this particular post.  There is nothing in the constitution that allowed the federal government to put an end to the separate but equal laws of the south.  There is just no language to give them that power.  The law/due process was being applied equally, no one was being denied their basic rights.  But that does not make the laws good or right.  They were in fact in my opinion, misguided and bad.  Segregating people was providing no value in moving our country forward.  It was not in the spirit of all men being created equal.  It was an veiled attempt to try to deny equality, ironically it was a way to classify and control people.  But it still passed constitutional tests.  So what is the remedy?  The remedy is for us to control our destiny, change our laws, be active in our government, chose wise leaders who will speak out against injustice but let us create our laws, in our states.  In a free society we must let people make mistakes so we can learn from them and chose better paths for our future.  We cannot assume to be all knowing.  We cannot expect to get it right.  Right now we are making mistakes we do not see that future generations will wonder “what were they thinking.”  It is the natural course of things.

We will grow, mature our thinking and fix our mistakes.  We must let the states be laboratories of democracy.  We must be proactive citizens and work with our state governments and national leaders to ensure we are making wise laws and growing as a nation.  We must speak out against injustice.  We must educate ourselves and our neighbors.  We cannot sit back and let others do it for us.  We must be active and participate.  If we sit back and let others decide for us, we cannot be surprised by results we do not like.

As president Andrew Shepard (Michael Douglas) said in American President (I know, a movie quote)
America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the land of the free.

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.”

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.”

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.

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.

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:

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.

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:

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.

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.

The Force

Government is force.

We constituted a government to guaranty our liberties and protect us from force and fraud.  To protect our life, liberty and property.  But in order to do that government has the power of legitimate force on their side.  This force is defined and granted through the constitution and the rule of law.  If the government did not need force, if we governed ourselves and voluntarily contributed or participated in matters we have resigned to government, then we wouldn’t need the government, but there is a legitimate need and role for government and therefore force.  It really is that simple.

“The monopoly of the legitimate use of physical force, commonly but controversially known as monopoly on violence, is the defining conception of the state as first expounded by sociologist Max Weber in his essay Politics as a Vocation (1919).”

The goal of this post is not to decry government or force,  but to understand the government’s and our roles along with the tools the founders gave us to help constrain that power and use The Force for good.  James Fenimore Cooper wrote in The Chainbearer “That powerful servant but fearful master, fire” which may or may not be the basis for the debated but often attributed to George Washington quote “Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.” Let’s break that down.  Government, force, like fire, is our servant, not the reverse.  We have a “government of the people, by the people, for the people.” — Abraham Lincoln (Gettysburg Address). We created and agreed to this government as stated in the preamble of the ratified constitution. 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. Our government is a very powerful servant and we grant our government through enumerated powers The Force necessary.  Government is also a fearful master.  If we allow that government power and force to be the master of us, to rule us, grant us our freedoms and liberty, become its servant, we will get burned.  I can feel the heat already!

The quote attributed to George Washington is an altered form and may not have even been said by him, but that does not make it any less truthful, relevant and or important.  Equating government to force and using the metaphor of fire, it should not be left to irresponsible action.  It must be contained.  The government must be governed, we must have the ability to limit our governments scope and power to protect our freedom and liberty.  In Federalist 78 Hamilton stated that the Judicial branch would be the least powerful branch because it has “no influence over either the sword or the purse, … it may truly be said to have neither FORCE nor WILL, but merely judgment.” again the recognition equating government to force.

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” – James Madison

“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

“Power tends to corrupt and absolute power corrupts absolutely.” – Lord Acton

A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws. – Ayn Rand

I think a walk through history shows us repeatedly that if we do not limit the scope (Jurisdiction, watch for a future post) and the distance between us and our rulers, divided power, tyranny will only grow, power/force will centralize and we will not control our destiny or liberty.  The power in a republican form of government guaranteed by article 4 section 4 of the constitution – The United States shall guarantee to every State in this Union a Republican Form of Government – and further guaranteed by 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. – is that we keep government within the reach of the individual.  We grant the state power and keep our rights, not the reverse, we can never forget that!

So, we have a constitution to define the power/force relinquished by we the people to our federal government (every state has a constitution as well, be sure to read and understand your state’s constitution) and to constrain the government.  These powers are further refined and controlled by the 4th, 5th, 8th and 14th amendments.  Illegal search and seizures and probable cause, due process, cruel and unusual punishment and due process refined with equal protection.  The government is granted power and through the rule of law force, but there are checks and balances to make that force just and legitimate.   We can use The Force for good, or for evil.  The constitution provides the rules of the game.

In Federalist 28 Hamilton talks about the force of law and government and how the national power is restrained by the states.   The divided power of state governments to constrain this power is further mentioned by Madison in Federalist 46 “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation , the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

So we must understand The Force.  How government is granted this power and it is up to you and me to ensure they use it wisely.  (Does that make us Yoda?)  But we must ask ourselves at every turn, If it does not need to be done by force, then why should it be done by government.  I realize that is many times the argument, right there, but be aware of it, ask:  Do we need force to educate our children, provide healthcare, food and support for the truly needy, set wages and provide jobs?   Every time we leave it to force, we lose liberty.  If we give up liberty to force the few that won’t help, we give away our freedom.  “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” – Benjamin Franklin