CONSTITUTIONAL MYTHS
(Excerpted from “Democracy Versus Freedom”)
The “General Welfare”
There are a great many misunderstandings about our Constitution which, combined with the general public’s control over the election process, have created the huge, unwieldy leviathan that we have today in Washington, D.C.
First, let’s discuss the belief that the federal government is charged with “providing” for the “general welfare” of the nation.
The first time this term comes up in the Constitution is in the preamble; but being a preamble, all it is saying is that the general welfare would be served by the type of government being created; not by actual government action.
“General welfare” is also mentioned in Article I, Section 8, which spells out precisely what the legislature is authorized to do.
Most Americans believe that the “general welfare” clause authorizes Congress to pass any law and implement any program that it deems necessary to serve the public good. When this Article was first published, some of the opponents to the newly proposed Constitution expressed a fear that just such a misconception would result in unlimited governmental growth.
Article I, Section 8 reads, in part, “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;…..” What follows this statement is a listing of those activities assigned to the legislature. It is important to note that the listing of the specific functions assigned to the legislature is included in the same sentence as the above statement, separated by a semi-colon.
This detail is important because James Madison calls attention to it in ridiculing the misconception about what “general welfare” means.
In addressing concerns that the term “general welfare” authorized Congress to do whatever it deemed “necessary, so long as it served the general welfare” James Madison stated in Federalist #41 that:
“Some who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution on the language in which it is defined. 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 defence and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alledged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labour 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 expression just cited, the authors of the objection might have had some colour 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 what colour can the objection have, when a specification of the objects alluded to by these general terms, immediately follows; and is not even separated by a longer pause than a semicolon. If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it; shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent and the clear and precise expressions, be denied any signification whatsoever? For what purpose could the enumeration of particular power be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”
In his veto of “An act to set apart and pledge certain funds for internal improvements” Madison made the same comment concerning the use of the “general welfare” term by stating “To refer the power in question to the clause ‘to provide for the common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms ‘common defense and general welfare’ embracing every object and act within the purview of a legislative trust.”
Responding to that same bill, Thomas Jefferson wrote “This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to “……provide for the common defenses and general welfare”, has given them thereby a power to do whatever THEY may think, or pretend, would promote the general welfare…”
Nevertheless, the “general welfare” clause is used today to justify everything from federal involvement in education to building roads and prosecuting the drug war.
The Myth that Congress’ Power To “Make all laws which shall be necessary and proper” Grants It “Wide Latitude”
After spelling out the SPECIFIC powers granted to Congress in Article I, Section 8, the Constitution ends by stating that Congress shall have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers, vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Many Americans believe that this statement grants the Congress almost unlimited power to do whatever it wants.
In his report on the “Alien and Sedition Acts” James Madison addressed this as follows: “Whenever, therefore, a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised b Congress. If it be not, Congress cannot exercise it.”
The Supreme Court Is The Final Authority On The Constitutionality Of Laws
It is generally believed that the Supreme Court, the “highest court in the land” is the final authority on the constitutionality of laws.
Let’s consider what James Madison, in his “Report on the Alien and Sedition Acts,” had to say about that: “The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
So, you see, since the constitution was a compact between the individual states, creating the federal government or, as they called it, the General Government, the Supreme Court did NOT have the authority, any more so than did the other two branches of government, to issue the final opinion on the constitutionality of laws – only the states could have that authority.
And if you think about it, since the General Government was a CREATION of the Constitution, it follows that it is inferior to its authority, otherwise we’d have an institution that possesses the power to interpret the very document that created it!
Also, you might see that, in describing the individual states as sovereign, Madison and the rest of the people living back then viewed each state as its own nation, and the creation made by the constitution as a PLURAL arrangement. By that I mean that the title “United States” was PLURAL, such as THESE United States, not THE United States. This distinction is important when we consider the major change that was made that turned our whole system upside down.
The 14th Amendment and the Myth of a “Right” to Free Speech
That change is the 14th Amendment, which was ratified July 9, 1868. This amendment reads, in part that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside……”
So, according to this, in the terms that the Founders intended, if a person is a citizen of the United States, is he then a citizen of EVERY state? And if that be the case, what point is there in saying that a person is a citizen of the “United States” AND ALSO of the state in which he resides?
It seems to me that this amendment created a single entity called the “United States of America.” What’s more, the amendment goes on to state that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Thus, the 14th Amendment not only created a single entity called the “United States,” it gave that entity greater authority than the states had, even though the Constitution didn’t grant it the power to bestow “privileges and immunities” upon ANYONE.
Another consequence of this amendment is that now people attempt to apply every article of the Constitution to the state and local governments, as well as private individuals.
A PERFECT example of this is the FIRST Amendment, which says that “CONGRESS shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press……etc.
Now, let’s consider Thomas Jefferson’s view on the First Amendment, as stated in his Kentucky Resolutions. Jefferson says that the states “retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated.”
He went on to point out that “libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.” He states, right there, that the federal government has no authority whatsoever to interfere with the states’ handling of issues concerning religion and speech.
The National Endowment for the Arts
Another myth about Congressional power is the belief that the Constitution authorizes such bureaucracies as the National Endowment for the Arts (NEA) and similar entities.
Creation of the NEA is often justified by citing the statement, also in Article I, Sec. 8, that Congress is authorized “To promote the Progress of Science and useful Arts,……”
This statement, taken out of context, seems to say that Congress can act to promote science and the arts. However, the COMPLETE sentence reads “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;”
So you see, this power designated to Congress was for creation of the Patent Office and trademark laws. It in no way authorizes the creation of a bureaucracy which uses taxpayer money to buy “art” which the people themselves wouldn’t buy, if they were given a choice, or to fund scientific research.
A Congressman Represents Only His District’s Interests
and Senators Represent the Entire State
It is generally believed that our congressional delegation is charged with going to Washington and “bringing home the bacon.” That is, our Senators and Representatives are supposed to fight for all the favors, privileges, and money they can get for their respective state or district.
Imagine that; a national government which consists of 50 pairs of senators fighting for their state’s share of the federal pie, and 435 representatives each fighting for their district’s share of the pie!
Is this what is called “wise government”? Was this what the world called the “noble experiment” when our Constitution was first published?
No, it most certainly isn’t.
The role of each state’s congressional delegation is to go to Washington and tend to national issues while ensuring that their state is not abused by the others.
States are divided into congressional districts to ensure that the entire state is represented, instead of having the entire congressional delegation coming from one geographical area.
The representatives and senators of each state’s delegation are supposed to work together as a whole to ensure their state’s sovereignty is respected.
The reason we have one pair of senators and a group of representatives has already been explained.