“Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.” — Thomas Jefferson, First Inaugural Address, 1801
In many of my blogs I have referred to the constitutionality of many of the federal government’s spending and regulatory policies based on the enumerated powers granted to Congress in Article I, Section 8 of the Constitution.
I have questioned by what authority Congress or the Executive has to fund and regulate things such as education, farming, or head start programs. Before getting into my arguments we should review Article I, Section 8:
- “The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
- To borrow money on the credit of the United States;
- To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
- To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
- To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
- To provide for the punishment of counterfeiting the securities and current coin of the United States;
- To establish post offices and post roads;
- To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
- To constitute tribunals inferior to the Supreme Court;
- To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
- To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
- To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
- To provide and maintain a navy;
- To make rules for the government and regulation of the land and naval forces;
- To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
- To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
- To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
- To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
This is written so anyone with an 8th grade education should be able to read and understand it. Clause 7 refers to “Post Roads” which was in 1787 was a term associated with a road designated for the transportation of postal mail. In past centuries only major towns had a post house, and the roads used by post riders or mail coaches to carry mail among them were particularly important ones or, due to the special attention given them, became so. In various centuries and countries, post road became more or less equivalent to main road, royal road, or highway. In light of this definition financing of federal highways, like the Interstate System, would be a legitimate function of Congress. A law of 1838 designated all existing and future railroads as post roads. This change in the definition gave Congress the authority to guarantee bonds for the construction of the transcontinental railroad.
Clause 18, the “necessary and proper” is the clause that has opened the door for the courts to expand the powers granted Congress by the framers of the Constitution. If read in context with the total section one would think that this clause would only refer to the execution of the previous 18 clauses. It was not a blank check signed by the taxpayers for Congress or the Executive to do whatever they wanted — this was not the case.
Undermining the wisdom of the Founders began quickly with one of their peers. Supreme Court Chief Justice John Marshall, appointed by John Adams, laid the foundation of current constitutional law. He also set the precedence whereby judges can overrule the people under broad powers not actually granted the judiciary under the Constitution. In McCulloch v. Maryland (1819), the issue at hand, and the first death-blow to our republic, was the meaning of the "necessary and proper" clause,
In this case Maryland (the plaintiff) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations.
The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (defendant), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed.
The basic issues in the case were:
- Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution?
- Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution?
Holding and Rule (by Marshall)
- Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8).
- No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.
Marshal wrote in his opinion:
“The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry it into effect pursuant to the Necessary and Proper clause.
The Bank of the United States has a right to establish its branches within any state. The States have no power, by taxation or otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State.”
In his ruling, Marshall either through calculated federalism or a serious error in logic by defined the meaning of "necessary" as:
“[to] employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”
Marshall argued that Congress had the "implied" powers to make laws that supported their "expressed" powers listed in the Constitution. The result of this is staggering in its effect. Instead of defining "necessary" as only those actions necessary for the government to achieve a stated goal of the People while limited by the power of the States, or the People, Marshall gave the federal government legal carte blanche to use "any" means to achieve any goal they choose to set. In other words, the ends justify the means in all federal government activity. Now the federal government had both the power to define the goals, and the power to use any means they deemed necessary to achieve them — including stripping power from the States and the people where convenient. Obviously, this ran completely contrary to the intent of the Founders to empower the People as ultimate authority over themselves. Specifically, the decision nearly completely nullifies any limitations of Article I placed on Congress. It is an outrageous conclusion, which has played a key role in several critical federal actions to date. In fact, the Clinton Administration spelled out their belief that the federal government had plenary powers (absolute final authority) before the Supreme Court and there has only been one Supreme Court decision since the New Deal in all their decisions relating to the ruling limiting federal powers (Lopez v. the United States), a case involving the interpretation of the commerce clause where the Court ruled against the government.
This was a new interpretation of the “necessary and proper” clause. This was an interpretation that would open the door for 194 years of mischief and increasing power for the federal government.
Once this crack in our constitutional logic was opened, political powers were not long to take advantage. In his essay, "Two Logical Errors in Constitutional Jurisprudence," Friesian philosopher Kelly Ross elaborates on two critical government maneuvers which doomed the American citizenry to ever increasing governmental control. The first was the definition of “necessary and proper” in McCulloch v. Maryland, as noted above.
Ross notes some governmental restraint in the example of Grover Cleveland vetoing a funding bill for the relief of California dust bowl victims where Cleveland cited that the government had no authority to exercise its power merely for "objects of benevolence".
“Ultimately, federal power could not become absolute unless "legitimate Constitutional purposes" could be interpreted to mean anything, expanding the ends to a scope comparable to the allowed means. This was a long time in coming. Grover Cleveland, vetoing a bill to provide federal relief for drought victims in Texas, was still echoing the judgment of James Madison that the Constitution gave the federal government no ground to exercise its powers merely for "objects of benevolence." This restraint was destroyed by the New Deal Supreme Court in more than one way. First the power of the federal government to "lay and collect Taxes" for the "common Defense and general Welfare of the United States" was interpreted in 1936 (United States v. Butler) to mean that Congress could tax and spend on anything that, in its own judgment, would contribute to the "general Welfare of the United States." Since this obviously could mean absolutely anything, the "general welfare" clause thus became a carte blanche for the federal government to do anything that could be done with money.”
With the best of intentions, Congress was attempting to establish a politically popular goal of helping California victims by using its legal authority to use "any" means to achieve the goal even by robbing taxpayer's funds without taxpayer approval to do it with. Such federal assistance programs now run amok. The average American has no idea where the money taken from them may be headed, including completely out of the country under the guise of one form of assistance or the other.
There were no further challenges to the enumerated powers in Article I, Section 8 until 1936 and the case of the United States v. Butler.
In 1936 The New Deal Supreme Court in coordination with democrats used these new powers to greatest effect in United States v. Butler (1936). In their decision, the court ruled that it was within the power of the federal government to "lay and collect taxes" for the "common Defense and general Welfare of the United States".
Although it struck down the Act, the Court dealt positively with taxation and the expenditure of funds to advance the general welfare as specified in Article 1 Section 8 of the Constitution. The Court stated that the issue “presents the great and the controlling question in the case.” After comparing expansive vs. restrictive interpretations of the Spending Clause, the Court adopted the philosophy that:
“The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”
“Since "general welfare" can mean absolutely anything, the Supreme Court again issued the federal government another carte blanche. But this time, it gave them a blank check to do it with. Now the federal government not only had carte blanche power of law over the States and the People, it had the power and influence of money to achieve the goals of those in power at any given time. Thomas Jefferson feared the coming of this situation. In his Notes on Virginia, 1784 Jefferson stated:
“With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price.”
The Roosevelt Administration anxiously took advantage of its new powers and proceeded to buy off the electorate with Social Security. The Johnson Administration followed with Medicare. Caesar now had money and was getting men (voters) with it.
The second juridical nail in our coffin came in the form of the Supreme Court decision United States v. Darby (1941). In its decision defending the federal government's authority to impose labor laws, the Court destroyed the 10th Amendment by declaring it a mere 'declaration', a redundancy, a meaningless fact describing the structure of our government and not an actual legal restriction placed upon the government that needs obeyed by them under law. The 10th Amendment reads:
“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. — 10th Amendment”
The Fair Labor Standards Act of 1938 (FLSA) established a minimum wage and maximum hours for employees engaged in the production of goods for interstate commerce. The FLSA imposed criminal penalties including fines and imprisonment for violations of the Act, and for the shipment of goods in interstate commerce of goods produced in connection with such violations.
Darby, a lumber manufacturer, shipped some of his goods out of state and was arrested for violations under the Act. Darby demurred to the charges and the district court sustained the demurrer and dismissed the charges. The district court held that the Act sought to regulate manufacturing activity within a state and was therefore unconstitutional for exceeding Congress’s authority under the Commerce Clause. The Supreme Court heard the case on direct appeal.
The Issues were:
- Does Congress have the power to establish and enforce labor standards for the manufacture of goods for interstate commerce?
- Can the Supreme Court consider the motives and purpose of Congress in exercising its power under the Commerce Clause?
The Court held in favor of the government:
- Yes. Congress has the power to establish and enforce labor standards for the manufacture of goods for interstate commerce.
- No. The Supreme Court cannot consider the motives and purpose of Congress in exercising its power under the Commerce Clause.
The Court ruled that Congress can regulate the hours and wages of workers who produce goods that will enter interstate commerce. Congress can exclude from interstate commerce articles which deteriorates the health, welfare and morals of the nation. Congress has plenary power to regulate anything that affects interstate commerce.
While manufacture is not of itself interstate commerce, the interstate shipment of manufactured goods is such commerce. Congress may prohibit the shipment of such goods as a regulation of interstate commerce. Congress, following its own conception of public policy concerning restrictions on interstate commerce, is free to exclude from it articles whose use in the State for which they are destined are deemed injurious to the public health, morals or welfare, even though that State has not sought to regulate their use.
Such regulation is not a forbidden invasion of state power merely because either its motive or consequence is to restrict the use of articles of commerce, and is valid unless prohibited by other Constitutional provisions. The motive and purpose of the FLSA are to make effective the Congressional conception of public policy that interstate commerce should not facilitate competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which it flows. The motive and purpose of Congress’s regulation of interstate commerce are matters for the legislative judgment. The Constitution does not restrict its exercise and the courts are given no control over it.
In prohibiting interstate shipment of goods produced under the forbidden substandard labor conditions, the Act is within the authority of Congress, if no Constitutional provision forbids. Congress may exercise power over intrastate activities as a means to exercising its legitimate power to regulate interstate commerce. The Tenth Amendment is not a limitation upon the authority of the national government to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.
Justice Stone writing for the majority stated:
“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”
This is the height of chicanery. Through slick legalisms, the Court effectively reversed the intent of the 10th Amendment. By careful use of the word "surrendered", the Court now says that powers only default to the States or the People when the federal government expressly surrenders the issue to them instead of them being "reserved to the States respectively, or to the People" by default. Thus, if the issue is your right to chew gum in public, and since it is not clearly addressed in the Constitution, the power to decide is no longer yours by default. Instead it is only your decision if the Supreme Court or Congress decides that they don't care, and thus, "surrender" the decision to you. This is a complete flip of the founding principles of this nation where the People were the intended ultimate authority with a limited government having to justify its involvement in our lives through strict, restricted legal processes. The tiresome argument continuously offered in defense of this approach to definition of powers is that of slavery and the belief that without plenary powers, the federal government would have been unable to stop state laws allowing it. However, this is a woeful flaw in logic. It was never an expansion of federal powers that was necessary to resolve the issue of slavery but rather an implementation of existing laws and powers. The federal government willingly turned away from the issue of slavery at a time when it was too weak to hold the country together in battling over the issue until 1861, anyway. Attempting to use the failure of actually implementing past federal law as an excuse to increase the power of federal law now is completely disingenuous. As Ross notes, as a consequence, the average American now cowers under the authority of a range of federal agencies; IRS, DEA, OSHA, USDA, FDA, BATF, EPA, FEMA and others.
This opened the door for the Courts ruling the infamous 1942 case of Wickard v. Filburn — another case involving the coercive power of the people involving the Commerce Clause where the Court stated:
- Yes. Congress can regulate the production of wheat intended for personal use and not placed in interstate commerce.
- Yes. Congress can regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power, even if the effect is indirect.
While members of the Supreme Court enjoy special protections, only being subject to impeachment for "high crimes and misdemeanors", they continue to rule the nation by assuming any powers they deem necessary to achieve their goals. If we are to turn around our slide into socialism, an arduous reworking of the Constitution and reconsideration of powers of the Supreme Court are going to be required.
Recently, democratic Congressman Pete Stark (D, CA), a self-proclaimed socialist, summed up the reality of the situation at a July 24th Townhall meeting in Hayward, California:
“I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The federal government, yes, can do most anything in this country.”
Since John Marshall’s ruling in Marbury v Madison to Justice Robert’s majority opinion on ObamaCare the Supreme Court has been slowly redefining the words and intent of our Founders. In a slow trickle of decisions the Court has granted the federal government more and more power over our lives, our liberty, and our property. They have used one illogical decision to support another illogical decision. Today we suffer under an oligarchy of nine justices who have the power to change the Constitution and our Republic. Of course Congress and the Executive, in most cases, go along with this as it fits their whims of spending more and more money and imposing more and more regulations to suit the desires of their special interest constituencies. As Alexis de Tocqueville said some 178 years ago:
“When the taste for physical gratifications among them has grown more rapidly than their education the time will come when men are carried away and lose all self-restraint. It is not necessary to do violence to such a people in order to strip them of the rights they enjoy; they themselves willingly loosen their hold they neglect their chief business which is to remain their own masters.”
Today that is where we stand, according to the individuals actually responsible for making and executing our laws. Whether there is any road back is anyone's guess.