by History Matters, Church v State
The title of this post is loosely taken from Pirates of the Caribbean: The Curse of the Black Pearl:
“…the code is more what you’d call ‘guidelines’ than actual rules”
Readers of my posts here will know that I think the courts often get very far from the original intent of our Founding Fathers when they wrote the U.S. Constitution. There is a process for changing the Constitution (i.e. amendments), and that power is not supposed to be just in the hands of a handful of justices or a single judge, nor is it supposed to be in the hands of the legislature along.
The new “Bail-Out Bill” that just passed is a good example of losing sight of the basic theory of the Constitution. The bill authorizes the Secretary of the Treasury to “ensure the economic well-being of Americans.” Well, I certainly with for all Americans to have economic well being, but the Federal Government was not originally empowered to do that so directly.
The Preamble of the Constitution says (boldface added by me):
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Looking at definitions of those bold-face words at dictionary.com, we see the following:
establish: to found, institute, build, or bring into being on a firm or stable basis
insure: to guarantee against loss or harm
provide: to make available; furnish
promote: to help or encourage to exist or flourish; further
secure: to get hold or possession of; procure; obtain
Of all those words, the weakest is “promote” because it does not offer assurance of a result; it simply encourages the result. So the Federal Government must assure us of several things, but should promote the general welfare. It should not try to guarantee the general welfare; it can not promise our general welfare; it will help and encourage our welfare (as many would say to the government, “Just get out of our way and let us do it”).
But this bill tells the Secretary to “ensure the economic well-being of Americans.” Dictionary.com says this means, “to secure or guarantee.” Again, that’s a nice idea, but such power is not given by the Constitution (if it is even possible).
Let’s not forget the 10th Amendment, the last of the Bill of Rights, which says, “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.”
Examples like this are why I am trying to show a more “originalist” side of the Constitution. My specialty is the First Amendment’s religion clauses, but this Bail-Out Bill shows how our government so often goes beyond their given power in other area and in general. The Framers wrote this often-copied document to keep the central government from grabbing more and more power. But by ignoring inconvenient parts of the Constitution, and by our general lack of education about and knowledge of the Constitution, lawmakers and judges are able to claim more power than they are entitled to.