There is nothing new about the content of the article authored by Richard Latimer, entitled, A Lesson In Constitutional Law For Rep. Perry, posted on January 4, 2010. You can read the article for yourself, but Latimer attempts to “set straight” Rep. Jeffrey Perry’s method of constitutional construction concerning the general welfare clause and the tenth amendment of the US Constitution, as it relates to the federal government’s power of passing the national health care bill. This article is not an attempt to defend the honor of Rep. Perry, as correct as he may be on the subject discussed. It is not to make Latimer “see the light”, for I believe that many people who have adopted certain philosophies, world views and political ideas will never “see the light,” without an intervening act of God. I write this article to expose just a few of the flaws of the social and government philosophy that has been stressed in our society for over 100 years, and to defend the principles of a free federal constitutional republic, made up of states, for the enlightenment of those who still have an open mind to something other than what the tories/nationalists/oligarchies/globalists say.

General Welfare Clause: A Grant or a Limitation of Power?

A Grant of Power

Latimer essentially argues that the preamble (to the constitution and/or Article 1, Section 8–he is not clear on which, but for purposes of analysis, it matters not)–specifically, the “general welfare” clause–grants power to Congress and was intended “to state the broad, fundamental purposes of our democratic constitutional government in light of which all of the more specific provisions which follow must be understood.” Put differently, Latimer suggests the following method of constitutional construction of the words, “general welfare”: the specific enumerated powers granting certain limited powers to the federal government are to be constructed in light of the words, “general welfare.”

This method would go something like this. Suppose the federal supreme court needs to interpret the meaning of the words, say, “commerce among the several states”, in a case whose issue is the extent of Congress’ power to regulate commerce. If the court were to use a constitutional construction method as suggested by Latimer, the court would impose the meaning of said words that comports to whatever end would accomplish the goal of the “general welfare” of the American people, regardless of state sovereignty or limiting enumerating language to the contrary. The legal question would go, “Does this particular law passed by Congress promote the general welfare?” If yes, then Congress may regulate that commerce, and as such, the states and the people necessarily do not have the power to regulate or interfere with such law. Thus, the limit to the power is not the actual words of the delegation (“commerce among the several states”), but the end result of the law, that is, “general welfare.” Unfortunately, this is in fact the type of construction method that federal courts have used for many years (though not necessarily admitted as such). Consequently, the federal government (and those within the control of its matrix) has done a great job as feeding the ignorance and deception of the people of the states relative to what a limited federal constitutional republic is.

This method contains nothing but disingenuous political thought and standard, to where a part (“general welfare”) of the whole (the constitution) is used to defeat the very purpose of the whole. This flawed standard is analogous to saying that the federal government has no power to encroach state sovereignty (which the tenth amendment declares), but that one branch (i.e. the Judiciary) out of the three in the federal government has the power to define what state sovereignty is. If the standard of federal power was the “general welfare” and that all powers are to be judged in that light, please explain: why enumerate any powers at all? Why suggest that the federal government is a limited government? Why go through the formalities of actually writing a constitution? Why debate the extent of its powers for years before its ratification? Why suggest to the ratifiers that the federal government is strictly bound by the limitations enumerated and that the states have an inviolable line of sovereignty within their borders?

Did the founders and ratifiers spend years of intense and heated debate and discussion on the purpose of a constitution; the principles of free government; the difference between a federal verses national verses monarchy verses democratic government; the need for a limited federal government; the absolute retention of the states’ powers; the lines of sovereignty and the words which would adequately effect these ends, all to be misinterpreted and deconstructed by the virtually limitless power of the “general welfare” clause? How ludicrous and illogical a thought!–unless of course you are not concerned about the evils of human nature, the abuse of power, the limitation of government, state sovereignty as expressed in the Law of Nations (which is acknowledged in the US Constitution), federalism (which was admittedly the most superior form of government the world had ever seen), and the true character and nature of the union as modified in 1787.

A Limitation on Power

“Latimer’s method” completely ignores and excludes the other constitutional construction method relative to the “general welfare” clause–the one proposed by those who drafted and ratified the constitution. That is, instead of the “general welfare” clause defining the specific enumerations of Congress’ power, the specific powers actually define what “general welfare” is, just as all of the articles and amendments of the constitution and their limitations on the federal government shed light on what “securing the blessings of liberty” is. This method is literally Contract and Law Interpretation 101, which is well-settled that “specific contract provisions prevail over general provisions” and “the general rule of statutory construction is that a specific provision prevails over a more general one.” See, Daff v. U.S., 78 F.3d 1566, 1574 (Fed.C.A. 1996); Crooker v. BATF, 670 F.2d 1051, 1080, FN2 (D.C.C.A., 1981). I guess sound rules of construction do not apply to the most important legal document in our country.

With that said, did the term “securing the blessings of liberty” convey power to the federal government too?! After all, that clause is in the preamble preceding all the articles in the constitution, which would convey this power not only to Congress, but to all of the federal government. They might as well have said, “Congress has the power pass whatever laws they deem right and just. The President has the power to execute whatever laws it deems right and just. The Judiciary shall uphold all laws it deems right and just.” What nonsense! Generic grants of power have long been considered wholly inadequate to check the abuse of power and to limit centralized governments. As one of the authors of the Anti-Federalist Papers noted,

“Before the existence of express political compacts it was reasonably implied that the magistrate should govern with wisdom and justice, but mere implication was too feeble to restrain the unbridled ambition of a bad man, or afford security against negligence, cruelty, or any other defect of mind…Therefore, a general presumption that rulers will govern well is not a sufficient security.” Brutus and Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates, (New York: Signet Classic, 2003), 318.

This rationale was in fact the concern raised about the “general welfare” clause in the proposed constitution in 1787. Consider James Madison’s response in Federalist Paper 41 to these concerns:

“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’…

“BUT THE IDEA OF AN ENUMERATION OF PARTICULARS WHICH NEITHER EXPLAIN NOR QUALIFY THE GENERAL MEANING, AND CAN HAVE NO OTHER EFFECT THAN TO CONFOUND AND MISLEAD, IS AN ABSURDITY, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the LANGUAGE USED BY THE CONVENTION IS A COPY FROM THE ARTICLES OF CONFEDERATION. The objects of the Union among the States, as described in article third, are ‘their common defense, security of their liberties, and mutual and general welfare.’ The terms of article eighth are still more identical: ‘All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,’’ etc. A similar language again occurs in article ninth. CONSTRUE EITHER OF THESE ARTICLES BY THE RULES WHICH WOULD JUSTIFY THE CONSTRUCTION PUT ON THE NEW CONSTITUTION, AND THEY VEST IN THE EXISTING CONGRESS A POWER TO LEGISLATE IN ALL CASES WHATSOEVER.

“But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. HOW DIFFICULT IT IS FOR ERROR TO ESCAPE ITS OWN CONDEMNATION!” (Emphasis added)

Madison’s response to this constitutional construction (held by Latimer) is quite strong and literally satirical and cynical, actually mocking those who would even propose such an interpretation of the US Constitution. Madison expressly notes that the enumerated powers define the parameters of the “general welfare,” not the other way around as Latimer suggests. Madison even points out that the general welfare, common defense and security of liberty provision clause in the preamble is identical to the one in the Articles of Confederation, just as about all the powers of the federal government are identical. (Sorry, nationalists: the US Constitution was in fact of the same nature and character as the Articles–a union of states, not people.) In other words, the purpose, character and nature of the federal government did not change from the Articles to the US Constitution.

Of course, this theme of constancy between the Articles of Confederation and the US Constitution is consistent throughout the federalist papers, proving in part that the method for constitutional construction is one of limitation, not expansion of federal power, and is one that maintains the inviolable line of sovereignty between state and federal. While the federal courts have completely twisted this principle of constitutional construction since the early 1800s, starting with John Marshall’s court, many supreme court justices have not bought into the nationalist-interpretation of Congress’ power. (“I challenge the broad proposition that the General Welfare Clause is a grant, not a limitation, of power.” Buckley v. Valeo, 96 S.Ct. 612, 740 (1976), Justice Burger.)

Yet, even when the most nationalist-minded founders express the following concerning the role of the federal government, we still have people like Latimer who attempt to defraud the people to believe that the federal government’s powers are more than what has been granted to them and that the states are mere subsidiaries to a mega-corporation, vis-a-vis, the Federal Government:

“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.” James Madison, Federalist Paper 45.

If James Madison is correct regarding the general welfare clause conferring power to the federal government, then Latimer is most certainly wrong. If Latimer is right, then we certainly do not live in a free federal constitutional republic.

Tenth Amendment: Actual or Pretense?

This leads me to the next point of discussion in Latimer’s article: the powers reserved to the states under the tenth amendment. Given Latimer’s constitutional construction method alone (i.e. “the [preamble] grants Congress power”), the tenth amendment is utterly worthless, having no effect whatsoever; specifically by the preamble stating that the constitution’s purpose was to “secure the blessings of liberty.” Given Latimer’s method of constitutional construction, if the federal government deemed that a state were not implementing laws best conducive to the “blessings of liberty,” the federal government could use its extremely broad powers to “secure the blessings of liberty” and could dictate to the states the laws it may or may not pass; despite the states’ expressly reserving all powers not granted to the federal government, which the Law of Nations acknowledges a sovereign state has the absolute right to do and defend. Of course, to Latimer and his like, elimination of the states would likely be a good thing, regardless of whether his interpretation of the constitution is ACTUALLY the meaning understood by the ratifiers in 1787.

Line of Separation Between Federal and State: Who Maintains It?

Latimer’s method of construction devours the limitations placed upon the federal government and the line of separation between the states and the federal government–a line that Madison claimed was inviolable–unbreakable and unassailable. James Madison says in Federalist Paper 39, “the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and LEAVES TO THE SEVERAL STATES A RESIDUARY AND INVIOLABLE SOVEREIGNTY OVER ALL OTHER OBJECTS.” (Emphasis added) How can an inviolable line of powers be maintained if the federal government can increase its powers at will, or as defined by the most un-democratic office holders in the country: the federal supreme court? Interestingly enough, the federal government, in toto, seems to be doing a great job at drawing and maintaining a “line of separation between church and state.” Why not apply the same strict principle of separation to the sovereignty of federal and state government? Funny how lines all of a sudden get blurry. The fact is: federal government lovers care nothing of the lines of sovereignty, except moving it encroachingly more into the territory and dominion of the states and people respectively, the tenth amendment notwithstanding. This requires the states to defend what is rightfully theirs.

Red Herrings–The Typical Response

Latimer attempts to debunk the purpose, reality and strength of the retained powers of the states by using red herrings to distract his readers, such as using the de-segregation cases of the 1950s. He appeals to emotions instead of conclusions of correct political application, as if expanding the federal government’s limited powers at the expense of the states’ retained powers is noble and was somehow justified because an apparent injustice was taking place within certain states; as if those apparent injustices create power in the federal government, despite the lack of constitutional authority to do so. Latimer makes a false (and supposedly benign) statement that the “Fourteenth Amendment specifically prohibits the states from abridging the privileges or immunities of American citizens,” as if to suggest that he actually cares what the real meaning and intention of the constitution and amendments express. Perhaps Latimer should go back to the history books and learn that even the federal supreme court judges did not believe that the actual and real meaning of the fourteenth amendment conveyed the power to Congress which Latimer would have us believe per se, even while the “general welfare” clause was still there.

Actual Meaning–Does It Even Matter?

While attempting to find historical support in context of the passage of the fourteenth amendment to give Congress the power to impose upon the states their will regarding the matters of desegregation, despite the tenth amendment and no enumerated power in Article 1, section 8 to do so, Supreme Court Justice Felix Frankfurter’s law clerk confirmed that “it is impossible to conclude that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?, (New York, NY, Crown Forum, 2008), 47. So, instead of comporting to the line of separation between federal and state powers anticipated and demanded by the US Constitution, the federal supreme court decided it would declare a “new law for a new day,” as worded by Justice Robert Jackson. Ibid., at 49. And so the story has been for quite some time: new laws for new days shape constitutional construction.

A “Living” Constitution Kills Its True Meaning and Purpose

This “living/changing constitution” notion is evident when Latimer states the following: “Similarly, TODAY, Congress is empowered under Article I, Sect. 8, through taxation and regulation of commerce, to promote the general welfare by enacting socially beneficial programs into law, such as…health care reform legislation.” (Emphasis added). Latimer stresses in this sentence–and ones previous–that Congress has powers TODAY that it did not once have based upon the “general welfare” clause.

This constitutional approach of course contradicts the belief of those who influenced the principles of and who drafted and ratified the constitutions of the United States from 1777 to 1787. In fact, George Washington, the father of our country, expressed the fixed meaning of the constitution this way:

“Let the reins of government then be braced and held with a steady hand, and every violation of the constitution be reprehended. If defective, let it be amended, but not suffered to be trampled upon whilst it has an existence.” Albert Bushnell Hart, ed. and Mabel Hill, comp., Liberty Documents: With Contemporary Exposition and Critical Comments Drawn from Various Writers, (New York: Longmans, Green, 1903), 218.

The federal supreme court has recognized the same fixed meaning of the constitution: “We are bound to interpret the Constitution in light of the law as it existed at the time it was adopted.” Mattox v. United States, 156 U.S. 237, 243 (1895).

Of course Latimer would likely scoff at a notion that the constitution’s meaning is fixed. Unfortunately, most attorneys (ignorantly or not) do today (though consider the source of their education: ABA). When meanings change, it is no wonder how Latimer can in “good faith” conclude that the federal government has the power to force individuals to purchase health insurance mandated and controlled by them and force states to go along like little good slaves. It is this approach to constitutions that form the premises necessary to wittingly empower Congress to regulate “commerce [within] the several states” under the moving hand of the people’s “general welfare”.

So, What is “Limited Government”?

No doubt, Latimer and his like would say that the federal government is limited as well–perhaps not in the tongue-in-cheek fashion that Nancy Pelosi demonstrated when asked the question, Is the national health care bill constitutional? So, what is their proposed limitation? Latimer tells us: the federal government’s power rests somewhere between the “public interest [verses] individual liberties.” Of course, these definitions are made by either Congress or the federal supreme court. Perhaps Latimer should attempt to define “limit” for us: it would likely come out worse than Bill Clinton’s allusion to the definition of “is.”

What Are the Principles?

Of course, there is one thing that is ultimately missing in Latimer’s article: that is, principles or maxims. So, one must infer them, so here they are: the federal government has whatever power it decides to use subject to no restrictions other than the balance between “public interest and individual liberty” (short of maybe the federal supreme court’s opinion or presumably, constitutional amendment, though he would not dare suggest that the states should limit the power of the federal government in any way); human nature is naturally good; (federal) government is not to be feared; individuals are not created with certain inalienable rights which must not be interfered with by government; government need not encourage self-responsibility and -reliance, but government-program and -reliance; the status of “sovereign” states has no bearing to the limitations of the federal government; constitutions do not form the supreme will and consent of the sovereigns forming it; and to violate that supreme will is not committing an egregious act (of war) upon those sovereigns. In other words, Latimer’s principles run in direct contrast to the principles adopted by those whose thoughts formed and who drafted and ratified the Articles of Confederation and US Constitution. To Latimer, the federal government is our protector, our provider and our parent. To Latimer, “[t]hat socialized function of the federal government is not just constitutional; it’s intelligent, humane and long overdue.”

Now What?

The conclusion to be drawn from the juxtapositions displayed in Latimer’s method and the ones I have highlighted is that the people of the states have a serious identity crisis. We do not know who we are, why we are or how we came to be. We live in a country, under a federal constitution, which is supposed to be the “Supreme Law of the Land”; yet, there is not even close to being a consensus or even a similarity of thought on the nature and character, purpose, limitations and application of the constitution that we are all supposed to be governed by.

The polarities of the formation of the constitution (i.e. It was created by one people, forming one nation, creating a government subject only to the control of the people VERSES It was assented to by the sovereign individual acts of states in the form of a federal compact) cannot exist simultaneously. One will eventually give way to the other. Unfortunately, the nationalists have indeed gained ground on the matter for quite some time. Therefore, for all those who do not know where you stand, it is time to pick a side. Your ignorance is helping no one. If you do not know where to stand and why, then you need to study our history directly from the sources that influenced our country’s formation–not from talking heads, TV news stations or even talk radio. Watching Glenn Beck will not equip you to engage in the battle we are confronted with today. Finally, for those who stand firmly on the principles of self-government and federalism, “It’s Time We Decide” the identity of the constitution we consent to be governed by!

Copyright (c) 2010 Timothy Baldwin

The Founders were aware that, as is true of any legal document, the Constitution’s application to new cases sometimes would not be obvious, and the instrument would have to be interpreted. The Founders expected future interpreters to resort to the “meaning of the makers.”

One way to help determine the “meaning of the makers” was to employ long-standing guidelines for legal interpretation – called “rules of construction.” The rules of construction were considered to be of very great authority.

Perhaps 90 percent of them were stated in Latin, with the rest in English or Norman French. Many, if not most, of them are still used by lawyers and judges today when they interpret legal documents.

One particularly important rule of construction was Designatio unius est exclusio alterius – “the naming of one thing implies the exclusion of the other.”  Example:  If your spouse tells you to go to the grocery store and buy “cucumber, lettuce, milk, and eggs,” he or she probably is NOT suggesting that you buy cheese.

The Constitution listed over 30 powers of Congress. But the Constitution’s advocates pointed out that the designatio unius maxim made the list exclusive: Congress would have no powers not on the list.

To quiet fear from the Constitution’s opponents that the designatio unius rule might be disregarded, both sides agreed to adopt the Tenth 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.”

Thus, Congress was given various listed powers – such as authority to regulate commerce, to tax, to coin money, and to govern the federal territories and enclaves (such as D.C). But otherwise, Congress received no authority to control education, manufacturing, agriculture or a lot of other things Congress that presumes to control today.

Robert G. Natelson is Professor of Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment at the University of Montana.  He is a David Mason Scholar, and is a recognized national expert on the framing and adoption of the United States Constitution.  He edits the website, The Scholarship of the Original Understanding of the Constitution.