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Posted on 08/20/2009 8:44:56 AM PDT by EternalVigilance
Article I Section 8, Federalist No. 45, and the Tenth Amendment - the usurpation of power by Congress
It is difficult to understand how our national leaders can pass many of the laws they do given they have no authority to do so. It is also difficult to understand how everything seems to have been turned upside down -- what use to mean one thing now means the opposite. Well, here are the facts regarding the intent of the Constitution and how politicians attempt to convince us they are operating within its confines.
US Constitution
Article I - The Legislative Branch
Section 8 - Powers of Congress
17 Sep 1797
Taxing and Spending Clause – Article I, Section 8 of the US Constitution is sometimes referred to as the "The Taxing and Spending Clause". It's intent is to grant Congress the power to impose taxes for paying for three general areas: (1) pay off the Debt incurred during the war for independence, (2) provide for national Defense, and (3) provide for the general Welfare. The first paragraph reads as follows:
(first paragraph) The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
General Welfare Clause – The "general Welfare" clause in this paragraph is what the leaders in the central government use to grant themselves power to do whatever they want. However, James Madison pointed out that if this is what was intended, there would have been no need to enumerate the limiting powers listed in this same article. Madison was very clear that the power to tax and spend was confined only to the enumerated powers listed in the US Constitution. As has been pointed out, the general Welfare clause is a reference to one of the three areas where power was granted to the federal government with regard to taxing and spending, and those powers are enumerated between the first and last paragraphs of Article I, Section 8.
The first paragraph, therefore, is clearly an outline of what is to follow, which are the enumerated powers granted to the US Congress.
Necessary and Proper Clause – The "necessary and proper" clause is the other clause the central government uses to grant themselves power. This clause is found in the last paragraph:
(last paragraph) 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.
Here again, if the intent had been to grant the federal government unlimited powers there would have been no need to list the powers granted to the federal government, either in Article I, Section 8, or anywhere else in the Constitution. The intent of this clause is to provide the federal government the means to carry out the powers that were granted to it in the Constitution. For example, Section 8 grants the power to the federal government "To establish Post Offices and Post Roads". With regards to establishing Post Offices, it is "necessary and proper" that the government build post office buildings in order to carry out this function.
The last paragraph is clearly a clarification regarding the authority granted Congress as listed in the enumerated powers, and only the enumerated powers.
Commerce clause – Before leaving Article I, Section 8, the Commerce clause should also be discussed. The Commerce clause is an enumerated power listed in Article 1, Section 8, Clause 3. The clause states:
[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
This clause is often paired with the Necessary and Proper Clause in order to take a broad, expansive perspective of the Commerce clause. However, several facts must be taken into account. By definition "commerce" is the commercial exchange of goods and services including the marketing, purchasing, and transporting those goods. Production, on the other hand, is not part of the process of the commercial exchange of goods and services. "Among the several States" means activity occurring in more that one State. “To regulate" means the power to prescribe rules under which commerce shall be transacted. Taken together, this means Congress can not regulate matters that are completely internal to a State. Congress also can not interfere with things that are not necessary for executing its enumerated powers.
The way usurpers in the Congress have used the Commerce clause is to argue that commerce should include any gainful activity; which would of course give power to the central government to control the entire economy. Some have even proposed the Commerce clause is to deal with any human interaction including speech. The problem with these ideas is that they are inconsistent with the thinking of those who participated in the creation our Constitution.
US Constitution
Tenth Amendment
15 December 1791
When determining the intent of the US Constitution with regards to broad versus limited power there is the Tenth Amendment. This Amendment is part of the Bill of Rights, which were proposed by the First Congress to address the concern that the Constitution, as drafted, would open the way to tyranny by the central government. The Tenth 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.
This Amendment addresses the powers retained by the States and the people. It makes clear the idea that the federal government is limited only to the powers granted in the Constitution and restates how the Constitution's principle of federalism is designed; that is, by providing that powers not granted to the National government nor prohibited to the States are reserved to the States or the People.
The Federalist Papers
Essay No. 45
[James Madison]
26 Jan 1788
Quoting The Federalist No. 45:
“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.”
Federalist No. 45 makes clear the distinction between the external powers granted to the federal government from the domestic powers reserved to the States. The Federal government's power pertains, for the most part, to external or foreign affairs. The State government's power pertains to the life, liberty or property of the people of the several States. Again, Congress was not granted broad authority under the general Welfare clause. Therefore, Congress does not have the authority to fund domestic social programs under the guise of the general welfare.
Examples of Unconstitutional Taxing and Spending
Congress often seeks to exercise its powers which are not authorized in the Constitution by offering or encouraging the States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device is to condition allocation of federal funding where certain State laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide State 55 mph speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the States would lose highway funding if they refused to pass such laws. http://en.wikipedia.org/wiki/Tenth_amendment
Another easy to understand example of how Congress usurps its authority is the funding of local or particular projects comes from an article written at the Tenth Amendment Center. 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 [general] 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. (from the Tenth Amendment Center http://www.tenthamendmentcenter.com/2009/08/04/congress-a-wealth-eating-virus/ )
Conclusion
In summary, Congress can only tax and spend in order to: (1) pay the debt, (2) provide for the common defense of the Nation, or (3) for the general Welfare of the nation; and if for the general Welfare, then it must be governed by BOTH the following:
a. Authorized in the Constitution.
b. Be general and apply to all; not for local or particular projects.
Since every spending bill passed by Congress for the general Welfare of the nation must meet both of these requirements to be constitutional, and very few of the spending bills by the central government can meet these standards, then members of Congress have usurped their authority.
Judge Napolitano who is sitting in for the Glenn Beck program while Glenn is on vacation went over this thoroughly. Thanks for the post.
You’re right. They don’t have the power to do this!
ping for later
It is not difficult to understand. These nuts are drunk with power (those with the guns make the rules)..You don’t think politicians in black robes would rule against the people that put them on the courts.? Do you? The society is imploding and once the chaos ensues, some will attempt to re-enshrine the constitution. But, it will take chaos to shake the country out of it’s apathy. Evil is on the march and lots of people want a float in the parade downward.
If they do it they have the power. The question becomes will the States Revolt?
If you want to fix a house that is sagging, the first thing you do is look to the foundation.
The Judge is right. He has been trying to get the public to see how interstate is involved and how Congress has been using this little know tool to run commerce for years. People need to understand how they use it for their sole benefit to control business.
HOWZAT?
Or in other words...
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
There ya go.
Is ANYONE under the illusion that any leftist in any of the three branches of government would think
“Oh, I’d like to do X with the power I have, but the Constitution doesn’t give me that authority, so I can’t.”
The Constitution is meaningless to these people,
something only to be used to thwart those on the right
who actually give it credence.
So, how do we file a class-action suit against the IRS, seeking to prohibit it from collecting taxes that go to pay for unconstitutional projects of the Federal government?
I don’t think there are any on the right that don’t understand that every Object of this “healthcare” legislation is designed “to reduce them under absolute Despotism”.
“Those with guns make the rules”?
Those with the Justice Department make the rules.
No, you have your state legislature assert sovereignty,
set up an escrow, and release the federal income tax receipts as the fedgov keeps its part of the contract laid out in the Constitution.
Yer preachin’ to the choir, though. Most of the folks on FR (with the exception of the libtard lurkers) already agree that the Fed had far overreached its Constitutional authority.
The bigger problem is the predicted outcome of several generations of entitlement programs that have successfully bred a large voting block that is fully dependent on government largesse for their continued survival, founded on the politics of victimization.
As long as these folks can continue to vote themselves goods and services from the public trough, we are going to continue to sink into the abyss of the anointed one’s mad march to marxism.
It’s too late now to even challenge the usurping that’s been going on for decades....the Courts are packed with Judges who will not undo the craziness and blatant power grab.
..for instance, something like;
I move for a motion to dismiss in anticipation of subrosa subject matter jurisdictional discrepancy.
Fight fire with fire.
The think they're so smart with their fancy mouth talk, well can't we do the same?
Fair is fair, after all.
Ping and Save
bkmrk
Unfortunately, there was a great expansion of federal power during the New Deal era which the Court upheld as constitutional. Except for Justice Thomas, nearly all the other justices have shown no inclination to overturn the vast body of precedents in this area that have established the broad breadth of Congressional power under the Commerce Clause. Thus all the textual arguments made in this article including Federalist 45 are of little relevance in the face of hardened judicial precedent. Any nominee to the US Supreme Court who has written or hints of not sharing this view of precedent would have as much chance of confirmation as a snowball in hell.
Restoring limited governmentWe seek to restore the intended balance between the three separate branches of our government, and to strictly limit government to the Enumerated Powers granted and expressed by the will of the people of the United States in our Constitution.
All existing functions of the Executive branch that are outside of those Enumerated Powers must be eliminated.
All spending and regulation by the Legislative branch that lies outside the Enumerated Powers must cease.
Judges who attempt to legislate from the bench, or who abandon the clear principles of our Constitution, must be checked if liberty and justice are to prevail in our society once again.
We demand a return to adherence to the provisions of 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."
If overturning the very basis of the rule of law, American self-government, and liberty doesn't qualify as misbehavior, nothing does.
btt
But here’s a little news flash for all those reporters and commentators: I’m not going to Washington to seek their good opinion — I’m going to Washington to serve the people of this country. Americans expect us to go to Washington for the right reasons, and not just to mingle with the right people. -Sarah Palin RNCNC 2008
***
We are here today at a “changing of the guard.” Now, knowing how much I love this state – some still choose not to hear why I made the decision to chart a new course to advance the state. It should be obvious. It is because I love Alaska this much that I feel it is my duty to avoid the unproductive, typical “politics-as-usual” lame duck session in one’s last year in office. How does that benefit you? With this decision I will be able to fight even harder for you – for what is right and for the truth. And I have never felt that you need a title to do that. So, as we all move forward together, let us vow to keep championing Alaska and to advocate for responsible development and smaller government and freedom. -Sarah Palin, Alaska Farewell speech 2009
Can you name the unconstitutional programs and agencies whose elimination she has advocated?
Reading through all that text I found nothing that addresses the subject of this thread.
Where I come from, actions speak louder than words...
So, does that mean we can stop paying taxes until we have a constitutional Government again.
Lets face it, it has the power to destroy the individual. in other words, WAY WAY WAY too much power.
What can we do about it? I ask this in all sincerity, I am SICK of this. The Patriot act got my hackles up, but I tolerated it. I never should have.
What do we do now?
Well, okey-dokey then. We'll put aside the fact that in American politics words are the substitute for the means that are used in warfare. Which federal government programs or agencies has she eliminated? How many unconstitutional outlays of federal monies did she advocate for or receive as Governor?
Organize thoroughly from the bottom up.
Raise up a new generation of leaders who understand our Constitution and our republic form of government.
Take back the legislative branch.
Whoops.
In my last post, “republic’ should be “republican.”
bookmarking
Bump for later.
Google Sarah Palin: News results
Results 1 – 10 of about 16,168 for sarah palin. (0.26 seconds) (LAST WEEK)
Her words are echoing loud and clear! Zero is responding to her attacks. She is challenging his attempts to steal our childrens inheritance. They fear her, like you, apparently. Who else is being heard???
I was and still am hoping for a quicker fix.... but that would involve Armed Militia’s and Seceding states I suppose. And Honestly I don’t want it to come to that..../sigh
Excellent links. Thanks!
Excellent links. Thanks!
The price of liberty is eternal vigilance. There are no quick fixes that will matter.
The ONLY way to stop this runaway train is with a REAL REVOLUTION. It must be done by millions of armed people and supported by the Military. And if it isn’t done before they institute the sweeping healthcare reforme( not reforme at all) then it will be too late. Action has to be taken and must be significant. This huge piece of legislation contains much more than healthcare. ALL of these massive bills have contained things that allow this band of THUGS to rule over the people in every single area of their lives. They have taken over the monetary system, the banks, the personal property of citizens, the manufacturing system, and then the rest is contained in the subject pending legislation. Only the real deal will rescue America because he is systematically gutting (and will likely disarm your Military) form his OWN Military force and this thug and his band of thugs do not EVER intend to leave the White House. Obama, the Demon spewed straight out of hell itself, will RULE America forever until God removes him. The damage to all your lives tho is not going to be undone. This is UNbelieveable to watch. I have no doubt that through his Acorn and Union entities that they have already taken care of the results of the 2010 elections. It is only going to get much much worse. Folks who love their country and their freedom have no choice but to rise up bearing arms and physically throw these bums out!! CO
You’re spamming the thread with off-subject ads for your candidate. It’s crass, at a minimum. And you have signally failed to provide any evidence that said candidate cares about the matters we’re discussing.
Do you have anything of substance to add to the discussion at hand?
Re: post #26
I slipped up one time some months back and unthinkingly put up a donate link for a congressional candidate...one who also happened to be a FReeper. I got raked over the coals for it.
Have the rules changed?
So far, I haven't heard much from you about the alleged discussion. I would not have made any more posts. I consider Sarah Palin a good protector of our Rights, and her actions HAVE spoken to that effect.
You must be really miserable to be protesting about her so much. I guess she's not YOUR candidate. I doubt Rahm will vote for her, either.
I don't need your permission to make a post. If it has objectionable content, hit the abuse button! But, I doubt it will be removed. The name "Sarah Palin" is not an expletive to most of us conservatives...
Thanks for the opportunity.
*****
Have you ever listened to Palin talk about policy? Have you examined her record in Alaska? Do you know the political courage she has demonstrated achieving crucial goals there?
It's especially important to listen to Palin's discussion of policy matters now, as compared with during the presidential campaign, because then she was hamstrung by the need to tout the McCain campaign's discombobulated message. Now that she is free to craft her own message, and can base it on her own record, she is exponentially more compelling.
Unlike their Washington counterparts, there are Republicans around the country who have done well in state and local positions, and they deserve to be the party's new stars. Wherever you can find them, put them in the spotlight. No need to take sides. You like Bobby Jindal? Mark Sanford? Mitch Daniels? Awesome. The more, the better.
But start with Sarah Palin. It's about her record, her vision, her message and her sincere appeal. They are all top-notch, if you don't realize that, it's because you've been focused on nonsense instead of what really matters.
Make her the nominee for president? I don't really care, and I'm not sure she cares as much as you think she does. But by all means, make her a star, because the Republican Party doesn't have anyone who comes even close to fitting the bill like she does. - Author not specified, Sarah's Facebook Page
... The former Republican vice-presidential nominee and heroine to much of the GOP's base said in an interview she views the electorate as embattled and fatigued by nonstop partisanship, and she is eager to campaign for Republicans, independents and even Democrats who share her values on limited government, strong defense and "energy independence." -WashTimes
Can you name even one program or agency of the existing federal leviathan that Sarah Palin advocates dismantling?
If she doesn't advocate such, I still fail to see her relevance to this thread.
Don't you want to make your gal relevant? Or are you content to spin out selected examples of her rhetorical cotton candy?
"Alaskans and our communities have a long history of independence and opposing many mandates from Washington, D.C.," Governor Palin said. "This principle of maximum self-government for local communities is also set out in our constitution. There isn’t a lot of support for the federal government to coerce Alaska communities to adopt building codes, but lawmakers can always exercise checks and balances by overriding my veto. ...OMB, Alaska
As previously stated, actions speak louder than words. You must have a lot of words to spew like this guy...
****
Sarah Palin and the Death Panel, Bless 'Er Haaaarrt Dr. Carrie on 08.20.09 | no comments |
I learned from my Southern relatives that so long as you followed a person's name with the phrase: "Bless 'er ha-arrt", you could slam them all you wanted and still leave an impression that you were being charitable about the person. There's also the equal opportunity phrase: "bless 'is ha-arrt". Bless 'er haaaarrt means she didn't know any better, poor thang.
Sarah Palin is the author of the inflammatory phrase, "death panel", bless 'er haaaarrt.
Ahhh the power of words. This label, by design, sent an emotional ripple throughout our communities that contained imaginary toxic fumes. The smoke screen became a distractor in the healthcare reform debate. In order to remove this potent distractor, the leaders of the movement made a decision to carve the provision out of the House bill. ... -Chicago Today
UPDATE: Alaska legislature just over-rode her veto.
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