by Timothy Reeves, Oregon Tenth Amendment Center
Any honest reading of the US Constitution gives the impression that the Federal Government is but a lackey to the states. However, when it comes to the way it has been interpreted (incorrectly), there are three clauses which are widely cited as authority to usurp power which belongs elsewhere. In this article, I intend to delve into these and examine how they are true or false. I also intend to highlight the impact that the abuse/use of these clauses has had.
Article I Section8 Clause3 of the Constitution states that Congress has the power:
To regulate Commerce with foreign Nations, and among the several States, andÂ with the Indian Tribes;
This obviously means Congress has the right to regulate how much grain you can grow on your land for your own consumption, right? If you said no it does not (like any other thinking person), you are out of step with the US Supreme Court. This also means that the Congress can force you to purchase health insurance, right? If you said no, you are out of step with the Congress. Surely the Commerce clause means that if a migratory bird (that is hunted in another state) lands on your property, then your property can be seized by the Federal Govt. due to itâ€™s part in interstate commerce right? No?
How about this one; The Federal Government can make gun laws (in direct contravention of the US Constitution) because they are sold over state lines. Obviously the ambiguous verbiage above allows them the authority to ignore the clearly unambiguous verbiage of â€œshall not be infringed,â€ right?
Well, there is the Governmentâ€™s case, now how about the governed? For our case I will focus on some quotes from the founders:
How about that James Madison (the acknowledged father of the Constitution)?
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.
Soâ€¦ the way I read James Madison here is that the Commerce clause is to keep the states themselves from interfering with commerce (laying tariffs between states, placing restrictions on imports, etcâ€¦). It seems that Madison did not want the Federal Government using the Commerce clause to controlâ€¦ well.. everything.
How about Thomas Jefferson? Here is the quote I found from him-
â€œ[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) â€¦ but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.â€
Hmmmâ€¦ I think Thomas Jefferson agreed with me. The Commerce clause was intended only to regulate resale.
In fact, the federalist papers used the term â€œcommerceâ€ dozens of times, and they all amounted to the resale of things by merchants and shippers, not one time did it mean growing of agriculture or manufacturing of products for sale. If this context was examined, then this would be the original intent of the Constitution.
Necessary And Proper Clause
Article I Section8 Clause18 states that Congress has the power:
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.
Most school children are taught that this clause was added so that Congress could legislate on issues that would come with new inventions. (My teacher used to say that there were no autos in 1789, so they needed to put this clause in).
Surely this clause means that Congress can make any law they want, right? The problem with this view is that at the end of this clause the Constitution clearly limits the power to making laws necessary to carry out the other laws in the Constitution. In other words, Congress has the power to raise and support a navy, so they have the power to train sailors and commission ships.
These powers are referred to as â€œincidental powers.â€ They must be smaller than the power they are used in conjunction with. That is, they may regulate interstate commerce, but may not regulate state governments or laws.
Some examples of â€œnecessary and properâ€ overreach are:
In 1896, it was ruled that it was legal for the Federal Government to condemn a railroads property to build a national park on the basis that it was necessary to the national defense that the citizens are proud of their country.
Now, I love my country as much as anyone else alive, however, I love the freedoms more than the national park, and this just illustrates what freedoms we do not have. The necessary and proper clause was also used to justify the national bank as necessary to conduct the borrowing and national defense powers of Congress. But lets look at some other input:
Joseph Story (an early Supreme Court Justice) said-
â€œThe plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.â€
This about spells it out. The debate for McCullough Vs. Maryland is another source for quotes from Hamilton, Madison and Jefferson.
General Welfare Clause
To promote or to provide for the general welfare, appears in two places in the US Constitution;
First in the preamble, which is just a listing of reasons and gives no powers whatsoever, and then Article I Section8 Clause 1 where it states:
â€œThe 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;â€
Does this clause mean that Congress has no limits except what they believe will advance the â€œgeneral welfare?â€ Is it just the Supreme Court which determines the general welfare, but the federal government may do anything that the court does not forbid? This is the primary opinion of the elite and the elected. It has been used to justify welfare, Medicare, Social Security, Medicaid, and a host of freedom-destroying legislation. But what did the founders think of this?
Take James Madison-
â€œIf 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 Congressâ€¦ 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.â€
or this one:
â€œWith respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.â€
Or this one from Thomas Jefferson
â€œCongress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.â€
In reality, the â€œGeneral welfareâ€ clause is a qualifier. Congress may only lay taxes for revenue to be used for the general welfare (as opposed to the special welfare) of the states, for example, they may lay taxes to build postal roads, but they may not lay taxes for building postal roads in New Hampshire, to the detriment of the rest of the states. So, ironically, the way that Congress horse-trades favors for votes in Congress makes most legislation unconstitutional.
In addition to these gross misconceptions by the Federal Govt., they add the Supremacy clause, which states:
â€œThis 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 notwith-standing.â€
This is pointed to anytime the Federal Government wants to escape criticism from people saying they have exceeded their authority. However, a careful reading of the passage above makes it clear that only laws in pursuance of the US Constitution are supreme. Anytime the Federal Govt. goes beyond the Constitution, citizens are not bound to obey them.
The preceding examples of intentional misconstruction of the Constitution are examples of our Federal Government out of control. They pit the citizens against each other; they take from the hand of labor to give to the hand of not only the needy, but the banks and corporations as well.
They make people perpetual slaves by addicting them to handouts and then denying them the escape from this perpetual misery by over-regulating prospective employers for these people. They have bogged us down in perpetual wars overseas for over a period of 70 years, ignoring the appropriate method of war-making under the Constitution.
Indeed, this list could go on for pages. Most of these transgressions against the natural rights of man are done in the name of the good intentions (saving people from themselves). These need to end, and our country needs to return to the republican form of government it was founded on. Our states need to resume pushing back at the Federal Government and interposing on our behalf.
Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
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