If there were any doubt that our constitutional protection has been lost, that doubt should be removed by the congressional vote subjecting the personal health care decisions of every American to central governmental authority.

By an extremely narrow majority, the House of Representatives has crammed a profoundly unpopular and unconstitutional measure down the throats of the American public: And not only unpopular and unconstitutional, but expensive enough to virtually ensure our nation’s eventual bankruptcy.

Unless it is overturned, nationalized health care will complete the process of changing the Founders’ system of a government dependent on the people to one where the people are dependent on the government. Citizens will be thoughly re-molded into subjects.

The unseemly legislative conduct (the Founders would have called it “corruption”) leading up to the vote have communicated even to those previously not paying attention that federal politicians are now absolutely, utterly out of control. The majority in Congress has rendered it perfectly clear that there is no constitutional or legal restriction they will not violate.

As congressional rumblings about the recent Citizens United decision have suggested, protections for free speech may be next.

There is no “good” response to these outrages – that is, “good” in the sense of easy and foolproof: After all, the very people who perpetrated them also control America’s nuclear arsenal. There are only responses that, while difficult, offer real hope of success. Here are a few:

* Widespread court challenges, on every colorable constitutional, legal, and technical ground we can think of. State governments can take a leading role in this, by virtue of the fact that state governments are more likely than individuals to have standing in federal court. State governments and officials also have much to lose if the feds are allowed to complete their health care takeover.

* Health care provider non-compliance: To the extent they can, physicians and other providers should opt out of the system. Their choices include partial or complete refusal to participate in Medicare, Medicaid, and other government programs; refusal to take any but direct-payment patients; reduced work hours; and even career change and early retirement. Students considering a medical career should now reconsider. Given the ominous nature of the federal health care coup d’etat, my guess is that a lot of this will happen anyway.

* State constitutional amendments. One excellent idea is the amendment proposed in many states guaranteeing that the state will never participate in any system that denies patients and physicians the right to their own health-care decisions.

* Civil disobedience. This should include state non-compliance with federal health-care mandates and peaceful resistance by providers and citizens at every level. The model here should be the Civil Rights movement of the 1960s.

* Redoubling efforts for the 2010 elections. The people responsible for this bill should be cleaned out of Congress – all of them. In addition, we need to gear up for 2012 and ensure that state lawmakers elected in 2010 fully understand their constitutional obligations.

* Amend-to-Save. A clean sweep of Congress is not enough. There is now no escaping it – we need amend our Constitution to save it, or we will not have any Constitution left.

There is nothing new in this last proposal. Our fathers, grandfathers, and their predecessors all adopted constitutional amendments designed less to change the system than to preserve it. Again and again, the American people adopted formal amendments to rein in the politicians and restore or reinforce Founding principles.

Thus, the Ninth Amendment made clear that federal powers were not to be interpreted too expansively. The Tenth Amendment clarified that the central government had no authority other than that granted by the Constitution. The Eleventh reversed a Supreme Court opinion that conflicted with the dominant understanding of the ratifiers. The Twenty-First Amendment restored control over alcoholic beverages to the states, where the Founders had left it. The Twenty-Second Amendment restored the two-term presidential tradition set by Washington, Jefferson, and Madison. The Twenty-Seventh, although not finally adopted until 1992, had been proposed by James Madison and sent to the states by the First Congress. The Thirteenth, Fourteenth, and Fifteenth (the post-Civil War amendments) were more radical, but also principally fulfilled the ideals of the Founding.

Now we need a Twenty-Eight, Twenty-Ninth, and Thirtieth Amendment – not so much to change the Founders’ Constitution as to restore it. How? Congress will not reform itself. Fortunately, the Founders recognized that when Congress veered completely out of control, there had to be a way to amend without its consent. Hence, they wrote into the Constitution a procedure whereby two-thirds of the states could propose amendments, which would then be drafted by a convention, and approved only if three-quarters of the states ratified them.

We now have no choice: We are going to have to use that method. That’s why state legislative races are so important this year.

Rob Natelson is Professor of Constitutional Law at the University of Montana and a nationally-known expert on the American Founding. After a quarter of a century in academia, he is leaving this year to fight full-time for freedom at the Independence Institute in Golden, Colorado. His constitutional publications can be found at www.umt.edu/law/faculty/natelson.htm. The views expressed here are his own, not to be attributed to any organization or institution.

Last week politicians in Washington made a few things clear about how they really feel about the state of the union. First, they are beginning to hear the growing discontent with the size and scope of government and the broken promises that keep piling up. Certain events in Massachusetts recently made that statement loud, clear and unavoidable.

In the face of those events, the powers that be made the determination that some populist rhetoric was in order, and the idea of a spending freeze in Washington was proposed, albeit with several caveats. These caveats to the proposed spending freeze ensure that we are not at any real risk of actually doing anything about spending.

First of all is timing. It wouldn’t go into effect until 2011, which allows plenty of time to increase spending levels quite a bit before they are frozen.

If the administration really understood and cared about our spending problems they would not freeze spending a year from now, but cut spending immediately and significantly. But, spending cuts almost never happen in Washington, and they are not likely now or a year from now – if the politicians have anything to say about it.

The second caveat is the huge areas of the budget that are shielded from this freeze. The entire State Department budget is exempt, as are all entitlements, all military industrial spending and almost all foreign aid.

Fully 7/8 of federal spending is excluded from this freeze, and some areas to be frozen were actually set to decrease, which means a freeze actually guarantees a higher level of spending.

Especially insulting is the idea that in spite of our own fiscal problems at home, taxpayer dollars will continue to be sent overseas in the form of foreign aid where it often does more harm than good. When need is demonstrated to Americans and they can afford it, they can be counted on for a tremendous outpouring of private, voluntary charity to worthy aid organizations, as we recently saw in Haiti.

By contrast, government-to-government aid is taken from the poor by force and too often enriches the corrupt. It is counterproductive and wasteful. But the idea of eliminating, freezing, or reducing foreign aid is not up for serious debate any time soon.

The third caveat is what is included in the freeze that would make it politically impossible to pass Congress, for example air traffic controllers salaries, education, farm subsidies and national parks.

I do not necessarily want a cut in spending in this country – I just want to change who does the spending. The spending should be done by the people who earn the money, if they choose, and on what they choose, without any government interference. That is what makes the economy work.

Politicians should stick to the very limited roles given them by the constitution instead of allocating such a sizeable portion of our capital and intervening through regulations and tax policy. But because politicians have disregarded the constitution, and the people have no idea what rule they will break next, there is already a very real spending freeze underway in this economy, by the people.

If government would stick only to what it was authorized to do, and leave the rest to the people, most of these problems would resolve themselves.

Ron Paul is a Republican member of Congress from Texas

This article was originally published on December 11, 2006

The media, Congress, and the American public all seem to have accepted something that is patently untrue: namely, that foreign policy is the domain of the president and not Congress. This is absolutely not the case and directly contrary to what our founding fathers wanted.

The role of the president as Commander in Chief is to direct our armed forces in carrying out policies established by the American people through their representatives in Congress. He is not authorized to make those policies. He is an administrator, not a policy maker. Foreign policy, like all federal policy, must be made by Congress. To allow otherwise is to act in contravention of the Constitution.

Library of Congress scholar Louis Fisher, writing in The Oxford Companion to American Military History, summarizes presidential war power:

The president’s authority was carefully constrained. The power to repel sudden attacks represented an emergency measure that allowed the president, when Congress was not in session, to take actions necessary to repel sudden attacks either against the mainland of the United States or against American troops abroad. It did not authorize the president to take the country into full-scale war or mount an offensive attack against another nation.

But it’s not simply the decision to wage war that is left to Congress. Consider also the words of James Madison:

Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws (italics added).

So Congress is charged not only with deciding when to go to war, but also how to conduct– and bring to a conclusion– properly declared wars. Of course the administration has some role to play in making treaties, and the State Department should pursue beneficial diplomacy. But the notion that presidents should establish our broader foreign policy is dangerous and wrong.

No single individual should be entrusted with the awesome responsibility of deciding when to send our troops abroad, how to employ them once abroad, and when to bring them home. This is why the founders wanted Congress, the body most directly accountable to the public, to make critical decisions about war and peace.

It is shameful that Congress ceded so much of its proper authority over foreign policy to successive presidents during the 20th century, especially when it failed to declare war in Korea, Vietnam, Kosovo, and Iraq.

It’s puzzling that Congress is so willing to give away one of its most important powers, when most members from both parties work incessantly to expand the role of Congress in domestic matters. By transferring its role in foreign policy to the President, Congress not only violates the Constitution, but also disenfranchises the American electorate.

Ron Paul is a republican member of congress from Texas.

From a speech before the US House of Representatives  September 7, 2006

Politicians throughout history have tried to solve every problem conceivable to man, always failing to recognize that many of the problems we face result from previous so-called political solutions. Government cannot be the answer to every human ill. Continuing to view more government as the solution to problems will only make matters worse.

Not too long ago, I spoke on this floor about why I believe Americans are so angry in spite of rosy government economic reports. The majority of Americans are angry, disgusted, and frustrated that so little is being done in Congress to solve their problems. The fact is a majority of American citizens expect the federal government to provide for every need, without considering whether government causes many economic problems in the first place. This certainly is an incentive for politicians to embrace the role of omnipotent problem solvers, since nobody asks first whether they, the politicians themselves, are at fault.

At home I’m frequently asked about my frustration with Congress, since so many reform proposals go unheeded. I jokingly reply, “No, I’m never frustrated, because I have such low expectations.” But the American people have higher expectations, and without forthcoming solutions, are beyond frustrated with their government.

If solutions to America’s problems won’t be found in the frequent clamor for more government, it’s still up to Congress to explain how our problems develop – and how solutions can be found in an atmosphere of liberty, private property, and a free market order. It’s up to us to demand radical change from our failed policy of foreign military interventionism. Robotic responses to the clichés of big government intervention in our lives are unbecoming to members who were elected to offer ideas and solutions. We must challenge the status quo of our economic and political system.

Many things have contributed to the mess we’re in. Bureaucratic management can never compete with the free market in solving problems. Central economic planning doesn’t work. Just look at the failed systems of the 20th century. Welfarism is an example of central economic planning. Paper money, money created out of thin air to accommodate welfarism and government deficits, is not only silly, it’s unconstitutional. No matter how hard the big spenders try to convince us otherwise, deficits do matter. But lowering the deficit through higher taxes won’t solve anything.

Nothing will change in Washington until it’s recognized that the ultimate driving force behind most politicians is obtaining and holding power. And money from special interests drives the political process. Money and power are important only because the government wields power not granted by the Constitution. A limited, constitutional government would not tempt special interests to buy the politicians who wield power. The whole process feeds on itself. Everyone is rewarded by ignoring constitutional restraints, while expanding and complicating the entire bureaucratic state.

Even when it’s recognized that we’re traveling down the wrong path, the lack of political courage and the desire for reelection results in ongoing support for the pork-barrel system that serves special interests. A safe middle ground, a don’t-rock-the-boat attitude, too often is rewarded in Washington, while meaningful solutions tend to offend those who are in charge of the gigantic PAC/lobbyist empire that calls the shots in Washington. Most members are rewarded by reelection for accommodating and knowing how to work the system.

Though there’s little difference between the two parties, the partisan fights are real. Instead of debates about philosophy, the partisan battles are about who will wield the gavels. True policy debates are rare; power struggles are real and ruthless. And yet we all know that power corrupts.

Both parties agree on monetary, fiscal, foreign and entitlement policies. Unfortunately, neither party has much concern for civil liberties. Both parties are split over trade, with mixed debates between outright protectionists and those who endorse government-managed trade agreements that masquerade as “free trade.” It’s virtually impossible to find anyone who supports hands-off free trade, defended by the moral right of all citizens to spend their money as they see fit, without being subject any special interest.

The big government nanny-state is based on the assumption that free markets can’t provide the maximum good for the largest number of people. It assumes people are not smart or responsible enough to take care of themselves, and thus their needs must be filled through the government’s forcible redistribution of wealth. Our system of intervention assumes that politicians and bureaucrats have superior knowledge, and are endowed with certain talents that produce efficiency. These assumptions don’t seem to hold much water, of course, when we look at agencies like FEMA. Still, we expect the government to manage monetary and economic policy, the medical system, and the educational system, and then wonder why we have problems with the cost and efficiency of all these programs.

On top of this, the daily operation of Congress reflects the power of special interests, not the will of the people – regardless of which party is in power.

Critically important legislation comes up for votes late in the evening, leaving members little chance to read or study the bills. Key changes are buried in conference reports, often containing new legislation not even mentioned in either the House or Senate versions.

Conferences were meant to compromise two different positions in the House and Senate bills – not to slip in new material that had not been mentioned in either bill.

Congress spends hundreds of billions of dollars in “emergency” supplemental bills to avoid the budgetary rules meant to hold down the deficit. Wartime spending money is appropriated and attached to emergency relief funds, making it difficult for politicians to resist.

The principle of the pork barrel is alive and well, and it shows how huge appropriations are passed easily with supporters of the system getting their share for their district.

Huge omnibus spending bills, introduced at the end of the legislative year, are passed without scrutiny. No one individual knows exactly what is in the bill.

In the process, legitimate needs and constitutional responsibilities are frequently ignored. Respect for private property rights is ignored. Confidence in the free market is lost or misunderstood. Our tradition of self-reliance is mocked as archaic.

Lack of real choice in economic and personal decisions is commonplace. It seems that too often the only choice we’re given is between prohibitions or subsidies. Never is it said, “Let the people decide on things like stem cell research or alternative medical treatments.”

Nearly everyone endorses exorbitant taxation; the only debate is about who should pay—either tax the producers and the rich or tax the workers and the poor through inflation and outsourcing jobs.

Both politicians and the media place blame on everything except bad policy authored by Congress. Scapegoats are needed, since there’s so much blame to go around and so little understanding as to why we’re in such a mess.

In 1920s and 1930s Europe, as the financial system collapsed and inflation raged, it was commonplace to blame the Jews. Today in America the blame is spread out: Illegal immigrants, Muslims, big business (whether they get special deals from the government or not), price-gouging oil companies (regardless of the circumstances), and labor unions. Ignorance of economics and denial of the political power system that prevails in D.C. make it possible for Congress to shift blame.

Since we’re not on the verge of mending our ways, the problems will worsen and the blame games will get much more vicious. Shortchanging a large segment of our society surely will breed conflict that could get out of control. This is a good reason for us to cast aside politics as usual and start finding some reliable answers to our problems.

Politics as usual is aided by the complicity of the media. Economic ignorance, bleeding heart emotionalism, and populist passion pervade our major networks and cable channels. This is especially noticeable when the establishment seeks to unify the people behind an illegal, unwise war. The propaganda is well-coordinated by the media/government/military/industrial complex. This collusion is worse than when state – owned media do the same thing. In countries where everyone knows the media produces government propaganda, people remain wary of what they hear. In the United States the media are considered free and independent, thus the propaganda is accepted with less questioning.

One of the major reasons we’ve drifted from the Founders’ vision of liberty in the Constitution was the division of the concept of freedom into two parts. Instead of freedom being applied equally to social and economic transactions, it has come to be thought of as two different concepts. Some in Congress now protect economic liberty and market choices, but ignore personal liberty and private choices. Others defend personal liberty, but concede the realm of property and economic transactions to government control.

There should be no distinction between commercial speech and political speech. With no consistent moral defense of true liberty, the continued erosion of personal and property rights is inevitable. This careless disregard for liberty, our traditions, and the Constitution have brought us disaster, with a foreign policy of military interventionism supported by the leadership of both parties. Hopefully, some day this will be radically changed.

Statement at Hearing of the House Financial Services Committee, February 15, 2007

Transparency in monetary policy is a goal we should all support. I’ve often wondered why Congress so willingly has given up its prerogative over monetary policy. Astonishingly, Congress in essence has ceded total control over the value of our money to a secretive central bank.

Congress created the Federal Reserve, yet it had no constitutional authority to do so. We forget that those powers not explicitly granted to Congress by the Constitution are inherently denied to Congress – and thus the authority to establish a central bank never was given.

Of course Jefferson and Hamilton had that debate early on, a debate seemingly settled in 1913.

But transparency and oversight are something else, and they’re worth considering. Congress, although not by law, essentially has given up all its oversight responsibility over the Federal Reserve.

There are no true audits, and Congress knows nothing of the conversations, plans, and actions taken in concert with other central banks. We get less and less information regarding the money supply each year, especially now that M3 is no longer reported.

The role the Fed plays in the President’s secretive Working Group on Financial Markets goes unnoticed by members of Congress. The Federal Reserve shows no willingness to inform Congress voluntarily about how often the Working Group meets, what actions it takes that affect the financial markets, or why it takes those actions.

But these actions, directed by the Federal Reserve, alter the purchasing power of our money. And that purchasing power is always reduced. The dollar today is worth only four cents compared to the dollar in 1913, when the Federal Reserve started. This has profound consequences for our economy and our political stability. All paper currencies are vulnerable to collapse, and history is replete with examples of great suffering caused by such collapses, especially to a nation’s poor and middle class. This leads to political turmoil.

Even before a currency collapse occurs, the damage done by a fiat system is significant. Our monetary system insidiously transfers wealth from the poor and middle class to the privileged rich. Wages never keep up with the profits of Wall Street and the banks, thus sowing the seeds of class discontent. When economic trouble hits, free markets and free trade often are blamed, while the harmful effects of a fiat monetary system are ignored. We deceive ourselves that all is well with the economy, and ignore the fundamental flaws that are a source of growing discontent among those who have not shared in the abundance of recent years.

Few understand that our consumption and apparent wealth is dependent on a current account deficit of $800 billion per year. This deficit shows that much of our prosperity is based on borrowing rather than a true increase in production. Statistics show year after year that our productive manufacturing jobs continue to go overseas. This phenomenon is not seen as a consequence of the international fiat monetary system, where the United States government benefits as the issuer of the world’s reserve currency.

Government officials consistently claim that inflation is in check at barely 2%, but middle class Americans know that their purchasing power – especially when it comes to housing, energy, medical care, and school tuition – is shrinking much faster than 2% each year.

Even if prices were held in check, in spite of our monetary inflation, concentrating on CPI distracts from the real issue. We must address the important consequences of Fed manipulation of interest rates. When interest rates are artificially low, below market rates, insidious mal-investment and excessive indebtedness inevitably bring about the economic downturn that everyone dreads.

We look at GDP numbers to reassure ourselves that all is well, yet a growing number of Americans still do not enjoy the higher standard of living that monetary inflation brings to the privileged few. Those few have access to the newly created money first, before its value is diluted.

For example: Before the breakdown of the Bretton Woods system, CEO income was about 30 times the average worker’s pay. Today, it’s closer to 500 times. It’s hard to explain this simply by market forces and increases in productivity. One Wall Street firm last year gave out bonuses totaling $16.5 billion. There’s little evidence that this represents free market capitalism.

In 2006 dollars, the minimum wage was $9.50 before the 1971 breakdown of Bretton Woods. Today that dollar is worth $5.15. Congress congratulates itself for raising the minimum wage by mandate, but in reality it has lowered the minimum wage by allowing the Fed to devalue the dollar. We must consider how the growing inequalities created by our monetary system will lead to social discord.

GDP purportedly is now growing at 3.5%, and everyone seems pleased. What we fail to understand is how much government entitlement spending contributes to the increase in the GDP. Rebuilding infrastructure destroyed by hurricanes, which simply gets us back to even, is considered part of GDP growth. Wall Street profits and salaries, pumped up by the Fed’s increase in money, also contribute to GDP statistical growth. Just buying military weapons that contribute nothing to the well being of our citizens, sending money down a rat hole, contributes to GDP growth! Simple price increases caused by Fed monetary inflation contribute to nominal GDP growth. None of these factors represent any kind of real increases in economic output. So we should not carelessly cite misleading GDP figures which don’t truly reflect what is happening in the economy. Bogus GDP figures explain in part why so many people are feeling squeezed despite our supposedly booming economy.

But since our fiat dollar system is not going away anytime soon, it would benefit Congress and the American people to bring more transparency to how and why Fed monetary policy functions.

For starters, the Federal Reserve should:

• Begin publishing the M3 statistics again. Let us see the numbers that most accurately reveal how much new money the Fed is pumping into the world economy.
• Tell us exactly what the President’s Working Group on Financial Markets does and why.
• Explain how interest rates are set. Conservatives profess to support free markets, without wage and price controls. Yet the most important price of all, the price of money as determined by interest rates, is set arbitrarily in secret by the Fed rather than by markets! Why is this policy written in stone? Why is there no congressional input at least?
• Change legal tender laws to allow constitutional legal tender (commodity money) to compete domestically with the dollar.

How can a policy of steadily debasing our currency be defended morally, knowing what harm it causes to those who still believe in saving money and assuming responsibility for themselves in their retirement years? Is it any wonder we are a nation of debtors rather than savers?

We need more transparency in how the Federal Reserve carries out monetary policy, and we need it soon.

Ron Paul is a Republican member of Congress from Texas. His “Audit the Fed” bill, HR1207, currently has over 290 co-sponsors in the House of Representatives.  He is the author of seven books, including “The Revolution: A Manifesto,” and his latest, “End the Fed.”

The government of the United States is in the midst of debating major new undertakings, ranging from health care to climate change to energy development to tax reform.  Yet far more fundamental is a basic but stealth shift in national priorities—in the form of a rapid and pervasive expansion of government power over the private sector of the economy.

Although no serious discussion is occurring in the nation about the desirability of shifting economic power from individual decision-makers to the national government, that shift is a basic characteristic of virtually every policy proposal being debated in the Congress.

Take tax policy.  A 131-page document (pdf) issued by the Treasury goes way beyond recommending the extension of some of the expiring Bush administration tax cuts.  For example, the fine print contains over a dozen ways of discouraging American firms from doing business and investing overseas.  Supposedly minor technical changes also would have a severe impact.

For example, eliminating LIFO (last in-first out) inventory accounting will raise business taxes over $60 billion in one decade.  The Treasury also wants to revive four corporate environmental taxes that were eliminated in 1969.  These four arbitrary taxes have no relation between the tax burden imposed on a company and the pollution that it generates.  This bears an uneasy resemblance to Willie Sutton, who robbed banks because that was where the money was. Inevitably a variety of technical tax provisions will increase the paperwork burden on business.  The penalties for failing to file information returns (such as Form 1099) promptly and accurately are raised in a very complicated fashion involving three tiers of penalties.

On the expenditure side, the typical stimulus project increases the power of government in private business decision-making.  The bailout of the automobile industry is really an inefficient method of financing union pension and health plans.  The stockholders are zapped and the bondholders poorly treated.  The taxpayers are left holding the bag, especially considering the restrictions on General Motors importing the really fuel-efficient cars they produce overseas.  Apparently, the new General Motors factory for building compact cars was chosen on the basis of “carbon footprint” and “community impact.”

It is hard to keep a straight face when analyzing the new “cash for clunkers” program.  For example, owners of the biggest old clunkers get a $3,500 credit for trading in the old vehicles for a new one with an improvement of just one mile per gallon.  Surely, it would save energy if the Treasury just mailed the $3,500 checks directly to Detroit!

Of course, the Obama administration is making some reductions in federal spending.  It is reportedly imposing a 9 percent reduction in the budget for the division in the Labor Department that polices fraud and other illegalities on the part of labor unions.  As noted below, a simultaneous expansion of business-oriented antitrust enforcement is taking place.

Turning to regulation, one of Ralph Nader’s biggest disappointments during his heyday as a consumer advocate was the failure of his proposal for a new Consumer Protection Agency.  However, the administration’s financial regulatory plan creates a powerful new Consumer Financial Protection Agency (CFPA).

This new free-wheeling agency takes authority now divided between the Securities and Exchange Commission (SEC) and the Federal Reserve System.  In a change guaranteed to cause confusion, the CFPA will share authority with the Federal Trade Commission.  The new regulatory agency will also have a mandate to give consumers more economic education.  Educators find that especially scary.

Moreover, the agency will have its own money pot, independent of the normal congressional appropriations process.  It will be financed directly by fees assessed on “entities and transactions” across the financial sector.

The Treasury’s financial plan contains many other expansions of government power over business.  The Federal Reserve System is given new authority to oversee any large financial entity whose failure the Fed thinks could generate “systemic risk.”  The Treasury heads a new Financial Services Oversight Council to “resolve” the inevitable jurisdictional disputes among federal agencies.  A new Office of National Insurance is to be established in the Treasury to monitor “all aspects of the insurance industry,” a sector of the economy traditionally under the province of state governments.

The SEC will require the registration of all advisers to hedge funds and other private pools of capital with assets over a given threshold.  It also will have the power to inspect the books of the advisers and to ensure compliance by their clients.  In addition, the power of the SEC will be expanded by legislative proposals to give it a more active role in guiding the compensation committees of all public companies.

The Federal Deposit Insurance Corporation will have new authority to take over and shut down financial institutions (not just banks) whose failure is deemed to pose “systemic risk.”

Viewed in their totality, these technical financial changes would represent a historic expansion of government.  Sadly, there is little comfort in the Treasury’s warning in its 88 pages of detailed proposals:  “More can and should be done in the future.”  Comparisons with the New Deal of the 1930s are too timid.  Shades of Alexander Hamilton!

The complicated climate change bill that recently passed the House of Representatives is a dramatic example of expanding government power over the economy.  Again, the fine print deserves far more attention than it has received.  For example, buried in the 1,201 pages of detail is a provision authorizing the Department of Transportation to require automotive manufacturers to produce vehicles that can run on methanol (wood alcohol), a fuel not widely available.

Other provisions, as expected, have little to do with the subject of global warming.  For example, contractors on some energy projects must pay employees at least the locally “prevailing wage.”  It is well known that, in practice, that means paying higher union wage scales.

Many federal departments are trying to climb aboard the economic stimulus bandwagon.  The Department of Justice wants to help out by showing that antitrust should be a “frontline issue” in the response to the problems facing the economy.  Apparently, business is not getting sued often enough.  Incredibly, one new assistant attorney general views antitrust enforcers as “key members of the government’s economic recovery team.”

When we step back and try to add up all the tax, spending, and regulatory actions and proposals of the new Obama administration, the result is clear: a cumulative squeeze on private decision-making and a more slowly growing economy in the years ahead.

In the process, private businesses will be discouraged by a host of government policies from making major new investments, especially those of a long-term nature with payoffs far in the future.  Key negative factors are the likelihood of higher taxes and greater inflation resulting from the huge budget deficits that are likely to arise in the next several decades, abetted by lax monetary policies.

The American public is likely to have a long wait until the national unemployment rate gets back down to the 7.6 percent that was reported when President Obama took office in January 2009.

One fundamental point deserves to be stressed.  In the inevitable tension in public policymaking between economic prosperity and income redistribution, for the next several years the American people can expect that income equalization will get the government’s priority over improvements in people’s living standards.  The average American, at best, will receive a more equal slice of an income pie that will be far smaller than the public expects.

Murray Weidenbaum holds the Mallinckrodt Distinguished University Professorship at Washington University in St. Louis, where he also serves as honorary chairman of the Weidenbaum Center on the Economy, Government, and Public Policy.

With the nation in the midst of an economic crisis, many groups and individuals are questioning the massive spending and so-called economic stimulus bills recently passed by Congress. This includes bailouts and appropriations known as earmarks and pork-barrel spending. Since the constitutionality of federal spending is never part of the debate, we need to re-visit Congress’ power to tax and spend.

The Taxing and Spending Clause

Congress’ power to tax and spend is found in Article I, Section 8, Clause 1 of the Constitution for the United States of America. This Clause grants Congress 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.”

Constitutional Purposes of Taxation

Pursuant to this Clause, Congress can only impose taxes for three purposes. First, to “pay the debts…of the United States.” This provision was inserted, primarily, to give the federal government the ability to extinguish the existing debts of the United States and was not intended to grant Congress the discretionary power to dream-up ways to incur new debts. Second, to “provide for the common Defense…of the United States.” This provision enumerates the primary purpose of the federal government and grants Congress the power to raise the needed revenue. Third, to “provide…for the general Welfare of the United States.” Since most federal spending falls under the third clause, which is commonly known as the General Welfare Clause, it will be the focus of this article.

Definitions of “General” and “Welfare”

In order to accurately examine the general welfare provision, it is necessary to establish the meaning of the words general and welfare.

“General. 1: involving or applicable to the whole. 2: involving, relating to, or applicable to every member of a class, kind or group.”

“Welfare. 1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity.”

The word welfare is derived from the words “well” and “fare” and means a “state of faring well” or “well being.” When the Framers used the word welfare in the Constitution they were using it in this context. They were not referring to government give-a-way programs for the poor, disabled, disadvantaged, etc. These programs were virtually unknown to the Framers and would have been classified, in the language of the day, as a form of poor relief.

From the above, the common definition of the general welfare phrase, as used by the Framers in the taxing clause is: “the whole group’s well being.”

Since the general welfare phrase is annexed to the words “United States,” the whole group being referenced is a group of States called the “United States of America.” Thus, this Clause grants Congress the power: “[t]o lay and collect taxes to provide for the well being of the States in their united or collectively capacity.”

Alexander Hamilton confirmed this in Federalist Essay No. 83:

“The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.” [Emphasis not added]

The Original Controversy

Following the close of the Federal (Constitutional) Convention of 1787, a controversy arose over the meaning and scope of the general welfare phrase. The Anti-Federalists, who opposed ratification of the proposed constitution, were vehemently opposed to this provision because they believed it was an abstract term and Congress alone would determine its scope and meaning. They also asserted this provision amounted to an unlimited grant of legislative power.

The Federalists asserted that the Anti-Federalists had misconstrued the construction of this provision. James Madison, who is recognized by some as the father of the Constitution, argued that the general welfare phrase was a qualifying term, not an independent grant of power. He claimed the general welfare provision could not be construed as an unlimited grant of legislative power because it was followed by an enumeration of particular powers. Since the federal government was a government of limited powers, Madison asserted the power to tax and spend was confined to the enumerated legislative fields committed to Congress by the Constitution.

The United States Supreme Court

Following his election in 1932 and the implementation of his so-called New Deal policies, much of President Franklin Roosevelt’s legislation was challenged as unconstitutional. A majority on the Court, who had been appointed by Republicans, began declaring cornerstones of the New Deal unconstitutional in 5-4 decisions. This infuriated Roosevelt and he threaten to pack the Court with justices who would be more sympathetic to his New Deal legislation.

In 1936, in the case of U.S. v. Butler, the scope of the General Welfare Clause indirectly reached the United States Supreme Court in a challenge to the Agricultural Adjustment Act of 1933. Even though the Court again ruled against the New Deal in a 5-4 decision, it laid the foundation for Congress to exercise additional taxing and spending power through the General Welfare Clause.

A little over a year after the Butler decision, the Supreme Court decided a case that dealt specifically with the General Welfare Clause. This case involved a challenge to various provisions of the Social Security Act of 1935. Since there was no constitutional authority for this type of scheme, the federal government had to find a way to bring it under the umbrella of a clause in the Constitution. That provision was the General Welfare Clause. Citing the Butler case as precedent, the Court, in Helvering v. Davis, sustained the constitutionality of the Social Security Act in a questionable 5-4 decision:

“Congress may spend money to aid in the ‘general welfare.’ There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision… The conception of the spending power advocated by (Alexander) Hamilton and strongly reinforced by (Supreme Court Justice Joseph) Story, has prevailed over that of Madison, which has not been lacking in adherents (supporters).” [Bracketed words added for clarification]

Even though the Court’s ruling, in the author’s opinion, was erroneous and can be refuted in whole or in part, this analysis will focus on the views expressed by Hamilton and Story because their interpretations, if they were being followed, would render the majority of all federal spending programs, including earmarks and pork-barrel spending, unconstitutional.

NOTE: The opening clause of the Social Security Act states it is: “An Act to provide for the General Welfare.”

Hamilton’s Broad Interpretation

In his 1791 “Report on Manufactures,” Alexander Hamilton asserted the general welfare provision conferred a power separate and distinct from the specific grants of legislative power contained in the Constitution. He also claimed the specific grants of legislative power did not qualify or limit the meaning of the general welfare phrase. Therefore, Congress, according to Hamilton, had an independent and unspecified power to tax and appropriate money for the general welfare.

Even though Hamilton asserted the appropriation of money for the general welfare is totally within the discretion of Congress, he cautioned there are several limitations on their power.

First, Congress cannot use this provision as a pretext to legislate for the general welfare generally. It can only tax and spend for the general welfare of the United States.

Second, the appropriation must be applied to the whole (general) and cannot be local or particular.

“That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.”

Third, Congress cannot use the power of appropriation to do things “not authorized in the Constitution.”

“No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.”

When the States adopted the Constitution they agreed to unite specially – not generally. As stated by Alexander Hamilton in Federalist Essay No. 32, the Constitution would only establish a “partial union” between the States. A limited union equals limited powers. In other words, the States are only united within the scope of the limited powers delegated to the federal government. Thus, this provision cannot be construed to grant Congress the power to tax and spend to do things “not authorized in the Constitution” because the States are not united outside of the delegated powers and the general welfare provision is restricted to the States in their united capacity.

Story’s Commentaries on the Constitution

Joseph Story was a Justice on the United States Supreme Court from 1811-1845. In his 1833 commentaries on the Constitution, which the Court adopted in 1937, Story supported Hamilton’s assertions concerning the general welfare provision.

Story agreed with Hamilton that the general welfare provision was a component of the taxing power and not a grant of legislative power:

“The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.”

He also supported Hamilton’s assertion that appropriations must be general:

“A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution.”

Things not Authorized in the Constitution

If Congress cannot use the power of appropriation to do things “not authorised in the Constitution, either expressly or by fair implication,” then where would one look to find a basic blueprint so this rule can be followed?

Ironically, that would be a Federalist Essay written by James Madison. In Essay No. 45, he distinguished the external powers granted to the federal government from the domestic powers reserved to the States:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger, those of the State governments in times of peace and security.”

As stated by Madison, the powers of the federal government pertain, for the most part, to external or foreign affairs and do not extend to the life, liberty or property of the people of the several States. This constitutional principle, standing alone, disproves any assertion that Congress was granted broad authority under the General Welfare Clause. It also negates any claim that Congress was granted the authority to establish and fund domestic social programs under the guise of the general welfare. Thus, any appropriation to fund these programs is unconstitutional irrespective of whether it meets the general (apply to the whole) test.

In his analysis, Justice Story stated the federal government had not been granted the authority to meddle with the “systems of education, the poor laws, or the road laws, of the states.” Yet, Congress is using the general welfare provision to encroach in all of these areas despite the fact that it does not have the constitutional authority to do so under any provision of the Constitution.

Since the federal government was not granted any general authority over social or domestic issues within the several States, Congress is unconstitutionally taxing the American people “to do things not authorised in the constitution.”

Justice Story also addressed the appropriation of money for foreign purposes:

“If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mohammedanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles.”

Despite this limitation, Congress is using the general welfare provision as its constitutional authority for appropriating billions of dollars for foreign aid programs like those mentioned by Story. Congressional abuse has become so pervasive that Congress taxes the American people to build homes and fund birth control programs in foreign countries. As stated by Story, this type of spending is “wholly indefensible upon constitutional principles.”

NOTE: The Founders would have categorized Social Security as a form of poor relief. Thus, as stated by Story, the federal government never had the constitutional authority to tax and spend to establish this program in the first place. Yet, the Supreme Court adopted Story’s interpretation of the general welfare provision and then used it to declare the Social Security Act constitutional.

Earmarks and Pork-Barrel Spending Defined

After doing an online search to find some easy to understand definitions, I settled on the ones found on Wikipedia because they are accurate and touch on the constitutional rules placed on Congress’ power to tax and spend under the general welfare provision.

EARMARK: “a congressional provision that directs approved funds to be spent on specific projects…Typically, a legislator seeks to insert earmarks that direct a specified amount of money to a particular organization or project in his/her home state or district.”

PORK BARREL SPENDING: “government spending for localized projects secured solely or primarily to bring money to a representative’s district…benefits are concentrated in a particular area but whose costs are spread among all taxpayers.”

The reader will note the use of the words local and particular in defining the scope of these terms. Since congressional spending for the general welfare cannot be local or particular, these appropriations are, in the words of Justice Story, “not within the scope of the constitution.”

Here is an easy to understand example of how this type of spending works and why it is unconstitutional. At the present time, Congress imposes a general gasoline tax of 18.4 cents per gallon throughout the United States. When Congress writes a spending bill and a powerful member of Congress wants to buy some votes from the folks back home, he places an earmark in the legislation to have a 3 million dollar bicycle trail built in his home State or congressional district. The money for the project is appropriated from the general fund of the United States where the gasoline taxes were deposited with other taxes of a general nature. Thus, taxes from the general fund were used to finance a local or particular project within an individual State. This is unconstitutional. The project was not for the welfare of the States in their united capacity. This is unconstitutional. Since building bicycle trails in the States is “not authorised in the Constitution, either expressly or by fair implication,” the appropriation failed this test and is unconstitutional.

In other words, Congress cannot impose a general tax throughout the United States, put the money in the general fund of the United States, appropriate money from the general fund of the United States, and then spend the money for a local or particular project.

Summary of the Rules for Taxing and Spending

Every tax and appropriation that is not to pay the debts or provide for the common defense of the United States is constitutionally governed by the following rules.

1-The tax and appropriation must be for something authorized in the Constitution. If this rule is met, then the second rule comes into play.

2-The appropriation must be general, i.e., apply to the States in their united or collective capacity. Congress cannot tax and appropriate money for local or particular projects.

Every dollar contained in every spending bill passed by Congress for the “general Welfare of the United States” must meet both of these requirements to be constitutional. When these rules are applied, we find the majority of all federal taxes being imposed by Congress either fund programs and projects not authorized in the Constitution or are for local or particular projects. Thus, the majority of all federal spending, outside of the general operating expenses of the federal government, is unconstitutional because these two rules are either ignored or violated by Congress.

Conclusion

When federal taxation and spending is placed under a constitutional microscope for examination, we find the document has been infected by a wealth-eating virus called “members of Congress.” These individuals, who took an oath to support the Constitution prior to taking office, have disregarded the interpretations and limitations expressed above and unconstitutionally adopted a new interpretation of the general welfare provision. Their interpretation deletes words, disregards words, changes the meaning of the words “general” and “welfare,” and is absent of any of the limitations expressed by the Founders. In short, members of Congress claim they have the unlimited power to tax, spend, and legislate, as long as they cite the general welfare as the constitutional authority for the legislation.

And to add insult to injury, congressional appointees in the federal judiciary have constructed an obstacle course that makes it almost impossible for the American people to use the legal system to stop Congress from  taxing them to fund programs not authorized in the Constitution.

Now that we know the Congress of the United States has been violating the taxing and spending clause of the Constitution for decades and pushing the nation to the brink of economic ruin, the question is: what are we going to do about it? Our children and grand children are waiting for our decision.

Bob Greenslade [send him email] is a regular participant in Tenth Amendment Center comments and has been writing for  http://www.thepriceofliberty.org since 2003.

[Courts and Congress: America's Unwritten Constitution. By William J. Quirk. Transaction Publishers, 2008. Xviii + 312 pages.]

Courts and Congress defends a revolutionary thesis. If asked, who has the final say in our government on the meaning of the Constitution, most people would say, the Supreme Court. The Court itself agrees: in the famous Planned Parenthood v. Casey (1992) decision, it declared that it could not consider reversing Roe v. Wade (1973), because the American people had come to look to the Court as their guide.

William Quirk, one of the most original Constitutional theorists of our time, challenges this view. No, he does not challenge judicial review, the power of the Court to find laws unconstitutional: this he finds solidly based. He criticizes the Court for abuses of interpretation; but so long as the Court sticks to the language of the document, all is well.

So far, you may ask, what is original about that? Do not many other critics of the Court attack its at-times-bizarre interpretive methods? Quirk’s originality rests in his taking literally, and emphasizing, a part of the Constitution that most writers ignore. According to Article III, Section 2, the jurisdiction of the Supreme Court lies almost totally up to Congress. The Court has original jurisdiction only in cases involving disputes among the states and in cases where foreign diplomats are a party. Its appellate jurisdiction is subject to whatever “rules and exceptions” Congress chooses to make. So far as lower federal courts are concerned, they stand completely at the mercy of Congress. If it wished to do so, Congress could abolish the lower federal courts altogether.

Thus, if Congress does not like the decision of the Court in Roe v Wade and its successor cases, it can take away the right of the Court to hear any cases on appeal that involve abortion. True enough, that would still leave the decision on the books, and it would presumably be binding on other courts; but in practice, it might be difficult to sustain it. If a court decided to allow restrictions on Roe contrary to the mandate of the Supreme Court, this ruling could not then be appealed to that court for reversal. Congress might, by getting rid of the federal courts completely, leave abortion entirely in the hands of the state courts. In like fashion, of course, for other controversial areas. Quirk points out that until 1875, the lower federal courts did not have the right to hear appeals from state court decisions about federal law. By using its Article III powers, Congress could radically reshape constitutional law.

One might at first think that Quirk has made a mistake. Is he not blowing out of proportion a passage that really deals only with setting up rules of procedure for the federal courts? History buffs will be aware of the famous case of ex parte McCardle (1868), in which the Reconstruction Congress withdrew the right of the Court to hear a case, while that very case was pending before the Court; but is not this use of Article III an aberration? Surely, like the famous Tenure of Office Act, this was an example of how extreme that Congress was, rather than a guide to sound constitutional practice.

To those inclined to think so, the ruling of the Court in McCardle will come as a surprise. It fully recognized the right of Congress to withdraw its jurisdiction. The Court said,

We are not at liberty to inquire into the motives of the legislature. We can only examine its powers under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… It is quite clear, therefore, that this court cannot proceed to pass judgment in this case, for it no longer has jurisdiction of the appeal; and the judicial duty is not less fully performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. (pp. 289–90)

It is Quirk’s great merit to show that Congress’s power to limit the federal courts is a recurring theme in American history. Quirk is a Jeffersonian; and he points out that Jefferson and his followers feared the potential for abuse in federal judicial power and acted to curb it. The Federalists had secured the appointment of a number of Federalist judges in the Judiciary Act of 1801.

The Republicans replied to the Judiciary Act of 1801 by repealing it in the Judiciary Act of 1802. The 1802 act repealed “federal question” jurisdiction. It stripped the new judges of their offices. (p. 178)

Congressional power under Article III is far from a theoretical question. Congress has in fact acted to limit the federal courts in several notable instances. By the early 1930s, a majority of Congress had come to think that the courts often acted in an improperly antilabor way by issuing injunctions that forbade unions to strike. Employers who claimed that unions were a threat to their property did not have to go through the long and involved process of a civil suit. Once an injunction against a union had been issued, the court could instead hold the union in contempt and inflict civil and criminal penalties. Accordingly, in the Norris-LaGuardia Act (continually misspelled in the book), Congress, exercising its Article III authority, took away the power of federal courts to issue injunctions in labor cases. An interesting question, not discussed in the book, is why Franklin Roosevelt did not resort to this tactic in his disputes with the Court.

Again, in the 1950s, there was a Congressional outcry against several Supreme Court decisions that were deemed unduly protective of the civil liberties of members of the Communist Party. Senator William Jenner introduced a bill to withdraw the appellate jurisdiction of the Court in such cases; and although the measure failed to pass, its constitutionality was not seriously challenged. Opponents, such as Senator Jacob Javits of New York, claimed rather that the bill was unwise. One eminent law professor, Arthur J. Freund, who opposed the Jenner Bill, responded in this way when asked whether it was constitutional to limit the Supreme Court’s jurisdiction: “You can’t challenge the constitutionality of a constitutional provision” (p. 234).

The famous Engel v. Vitale (1962) decision, which held recitation by a public school teacher of a prayer in class to be unconstitutional, and the failure of a proposed constitutional amendment to overturn it to gain sufficient votes, aroused Senator Jesse Helms in 1979 to propose a “stripper” bill, as this sort of legislation is called, but it also failed of passage. In a number of instances, though, Congress has in fact stripped the federal courts of jurisdiction, and several such laws remain on the books today.

In recent years, a number of scholars have maintained that the Article III power of Congress is limited and that it cannot, e.g., bring it about that a constitutionally protected right is withdrawn from judicial scrutiny. Supporters of this position can appeal to the weighty authority of Justice Story, who thought that Congress was required to extend the full “judicial power” mentioned in the Constitution to the federal courts. Quirk successfully shows, though, that there is an extremely strong case that Congress does have the power to strip the federal courts of jurisdiction.

If Congress has the power, should it use it? Would not doing so remove a necessary check on Congress? Quirk does not think so. In his view, again a Jeffersonian one, Congress is the dominant branch of the American government; unlike the courts, it is directly subject to the will of the people. If one objects that majority rule can deprive a minority of its rights, Quirk responds that rights are safer with the people than with unelected courts. Murray Rothbard, by the way, thought much the same, especially in his later years.

To the argument that stripper bills would introduce chaos into the judicial system, since without appeal to a highest court, there would be no guarantee of uniform rulings in different jurisdictions, Quirk again has an answer. Is not experimentation desirable? Why should we not have varying rules, suited to local conditions?

If Congress has such power over the Supreme Court, why is it reluctant to use it when the Court abuses the Constitution? Quirk locates the answer in what he terms The Happy Convention. The principal aim of most members of Congress is to secure reelection to office. In order to do this, Congress avoids controversial moral and cultural issues whenever possible. Far better to have the Supreme Court, an unelected body that voters cannot unseat, take the blame for unpopular decisions.

Similarly, the Constitution clearly gives Congress the sole power to declare war. But, wishing to avoid blame should a war go badly, Congress has abdicated its power to the president. It is better, Congress thinks, for him to take the blame for Vietnam or Iraq. By its own lights, the Congressional policy has been remarkably successful. Most incumbents are reelected. The cost, though, is a severe one. Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Fall 2008.

“Some men think the Earth is round, others think it flat… But, if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? … NO.”

When Robert Bolt wrote that truism in his play A Man For All Seasons, his protagonist, Thomas More, was attempting to persuade the jury at his trial for high treason that all governments have limitations, and that the statute he was accused of violating was beyond Parliament’s lawful authority to enact. Sir Thomas was there appealing to the natural law as well as to the common sense of his jurors: The government can’t change the laws of nature. As we know, he fared no better than those who today argue that Congress is not omnipotent, has natural, moral, and constitutional limitations on its power, and every day fails to abide them.

Jefferson wedded the natural law to American law in the Declaration of Independence when he wrote that our rights are “inalienable” and come to us from “Our Creator.” Not only does federal law recognize that, but the whole American experience recognizes the natural law as the ultimate source of our freedoms and as a restraint on the government. Thus, the traditional panoply of American rights is ours by birthright and cannot be interfered with by an act of Congress or order of the president, but only after due process.

Two of those rights are speech and contract. A law enacted by Congress punishing speech (such as the Patriot Act provision that declares to be felonious speaking about the receipt of certain search warrants) is no law at all, since the law itself violates the natural right to speak freely, which is expressly protected in the Constitution. The Framers fully understood this as they wrote in the First Amendment: “Congress shall make no laws … abridging the freedom of speech.” I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment insulating it from government abridgement, and the Framers’ use of the article the reflects their unmistakable acceptance of that truism.

Similarly, a law changing the terms of a private contract is no law since it violates the natural right to make binding agreements. The Framers knew that as well. The Constitution specifically forbids the states and, by requiring due process and expressly forbidding taking property without just compensation, the federal government, from “impairing the Obligation of Contracts.” This, too, is a personal natural right that pre-existed the constitutional clauses that bar the government from interfering with it.

The Constitution sets forth just 17 discrete delegated powers on matters like currency, interstate commerce, the post office, the judiciary, and national defense. The Constitution also interposed two precise brakes on all federal powers: The Ninth and Tenth Amendments together state that the powers not enumerated in the Constitution as given to the federal government are retained by the people and the States.

The whole purpose of the Constitution is, was, and has been to define the government, to impose restraints on the government, and to guarantee personal freedoms. It specifically diffused power between the States and the central government and, within the federal government itself, it separated powers among the three branches.

It is elementary to state that the Constitution mandates that Congress writes the laws and decides how to spend tax dollars, the president enforces the laws as Congress has written them, and the courts interpret the laws as they have been written and enforced to assure their compliance with the Supreme Law of the Land.

As elemental as this sounds, it is hardly recognizable today. After 230 years, we have come to a point where a president declines to enforce laws he has himself signed, directs his Treasury Secretary to make laws interfering with private contracts, and signs executive orders that invade privacy, restrict speech, and appropriate property. Today, we have a Congress that delegates to the president its power to spend taxpayer dollars and money borrowed in the taxpayers’ names, has written laws regulating the air you breath, the water you drink, the words you speak, and relieving the persons with whom you have contracted or to whom you have loaned money from complying with their agreements. And our courts from time to time have raised taxes, run prisons, re-cast the boundaries of school districts, and declined to right obvious constitutional wrongs committed by the other branches.

The oath to uphold the Constitution that everyone in government takes, though solemnly delivered and publicly sworn to, like an oath to tell the truth in Court, is simply not taken seriously. Notwithstanding the plain language of specific grants and general restraints, notwithstanding a careful compromise between the Hamiltonians who wanted all power to be in the federal government and the Jeffersonians who wanted all power in the States, and notwithstanding our inalienable rights from our Creator, the federal government today simply recognizes no limits on its power.

But the Constitution is the Supreme Law of the Land. We will have chaos if those in whose hands we repose it for safekeeping intentionally violate it with impunity. A government that violates its supreme law becomes arbitrary, and arbitrary rule becomes authoritarian, and authoritarian rule will trample our freedoms. Just six weeks into its four-year term, the Obama administration and its allies in Congress, just like the Bush administration and its allies, have acted like they never heard of the Constitution. They have attempted to control salaries of private banks, change the terms of private mortgages, enter the marketplace by nationalizing banks and the world’s largest insurer, and investing taxpayer dollars in companies whose products consumers reject and investors eschew. This is theft of liberty and theft of taxpayer property.

Is freedom a reality or a myth? Are the rights guaranteed in the Constitution real or just a pretense? Isn’t the whole purpose of government in a free society to uphold rights rather than interfere with them? If the answers to these questions are no longer obvious, it is because we have a central government whose only self-acknowledged limitation is whatever it can get away with.

Andrew P. Napolitano [send him mail], who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Copyright © 2009 Andrew P. Napolitano

Supreme Court Justice Louis Brandeis warned, “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.” The freedom of individuals from compulsion or coercion never was, and is not now, the normal state of human affairs. The normal state for the ordinary person is tyranny, arbitrary control and abuse mainly by their own government. While imperfect in its execution, the founders of our nation sought to make an exception to this ugly part of mankind’s history. Unfortunately, at the urging of the American people, we are unwittingly in the process of returning to mankind’s normal state of affairs.

Americans demand that Congress spend trillions of dollars on farm subsidies, business bailouts, education subsidies, Social Security, Medicare and prescription drugs and other elements of a welfare state. The problem is that Congress produces nothing. Whatever Congress wishes to give, it has to first take other people’s money. Thus, at the root of the welfare state is the immorality of intimidation, threats and coercion backed up with the threat of violence by the agents of the U.S. Congress. In order for Congress to do what some Americans deem as good, it must first do evil. It must do that which if done privately would mean a jail sentence; namely, take the property of one American to give to another.

According to a Washington Post article (6/22/05), there were nearly 35,000 highly paid registered lobbyists in Washington in 2004 who spent $2.1 billion lobbying the White House, Congress and various agencies on behalf of various interest groups. Political action committees, private donors and companies give billions of dollars to political campaigns. My question to you: Do you think that these people are spending billions of dollars to assist presidents and congressmen to better perform their sworn oath of office to preserve, protect and defend the U.S. Constitution? If you do, you’re a fine candidate for a straitjacket. For the most part, the money is being spent to get politicians and government officials to use their coercive power to create a favor or special privilege for one American at the expense of some other American.

If we Americans didn’t give Washington such enormous control over our lives, I doubt whether there would be 10 percent of the money currently spent on lobbying and campaign contributions. This enormous control that Congress has over our lives also goes a long way toward explaining much of the government corruption that we see in Washington.

If the average American were asked whether he wishes to return to mankind’s normal state of affairs featured by arbitrary abuse, control and government dictates, I am sure he would find such a suggestion repulsive. But if you were to ask, say, the average senior citizen whether Social Security, Medicare and prescription drug subsidies should be continued, he would probably answer yes. The same would be true if you asked a college professor whether higher education should continue to be subsidized, or a farmer or a dairyman whether their products should be subsidized, or a manufacturer whether there should be tariffs and quotas on foreign products that compete with his product. The problem with congressmen producing favors and privileges to all interest groups is that it creates what none of us wants: massive control, numerous dictates and micromanagement of our lives.

There is no question that if one were to ask whether we Americans are moving towards more liberty or more government control over our lives, the answer would unambiguously be the latter — more government control over our lives. We might have reached a point where the trend is irreversible and that is a true tragedy for if liberty is lost in America, it will be lost for all times and all places.

Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com