Ignorant About the American Constitution?

I'd like to enlist the services of my fellow Americans with a bit of detective work. Let's start off with hard evidence.

The Federalist Papers were a set of documents written by John Jay, Alexander Hamilton and James Madison to persuade the 13 states to ratify the Constitution. In one of those papers, Federalist Paper 45, James Madison wrote:

"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."

If we turned James Madison's statement on its head, namely that the powers of the federal government are numerous and indefinite and those of the states are few and defined, we'd describe today's America. Was Madison just plain ignorant about the powers delegated to Congress? Before making our judgment, let's examine statements of other possibly misinformed Americans.

In 1796, on the floor of the House of Representatives, William Giles of Virginia condemned a relief measure for fire victims saying it was neither the purpose nor the right of Congress to "attend to what generosity and humanity require, but to what the Constitution and their duty require." In 1854, President Franklin Pierce vetoed a bill intended to help the mentally ill, saying, "I cannot find any authority in the Constitution for public charity," adding that to approve such spending "would be contrary to the letter and the spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded." President Grover Cleveland was the king of the veto. He vetoed literally hundreds of congressional spending bills during his two terms as president in the late 1800s. His often given reason was, "I can find no warrant for such an appropriation in the Constitution."

Today's White House proposes and Congress taxes and spends for anything they can muster a majority vote on. My investigative query is: Were the Founders and previous congressmen and presidents, who could not find constitutional authority for today's bread and circuses, just plain stupid and ignorant? I don't believe in long-run ignorance or stupidity, so I reread the Constitution, looking to see whether an amendment had been passed authorizing Congress to spend money on bailouts for airlines, prescription drugs, education, Social Security and thousands of similar items in today's federal budget. I found no such amendment.

Being thorough, I reread the Constitution and found what Congress might interpret as a blank check authorization -- the "general welfare clause." Then I investigated further to see what the Framers meant by the "general welfare clause." In 1798, Thomas Jefferson said,

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

"With respect to the two words ‘general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

My detective work concludes with several competing explanations. The first is that the great men who laid the framework for our nation were not only constitutionally ignorant but callous and uncaring, as well. The second is it's today's politicians who are constitutionally ignorant. Lastly, it's today's Americans who have contempt for the Constitution, and any congressman or president upholding the Constitution's letter and spirit would be tarred and feathered.

"My investigative query is: Were the Founders and previous congressmen and presidents, who could not find constitutional authority for today's bread and circuses, just plain stupid and ignorant?"

KK writes:

No. They were unauthorized while their successors have been authorized, at least in theory.

Note the following:
ARTICLE (IX.)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE (X.)
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.

One of the rights retained by the people would be the right to have their representatives act on their behalf. And since powers that are not delegated to the United States may be reserved to the people, the people must also have the right to have their representatives act on their behalf to accomplish whatever the people themselves have the reserved power to accomplish.

In brief, while the Founders had no authorization to do things that would fall within the category of "bread and circuses", if the people have the reserved power to do those things, they have the right to have the Founders successors do those things on their behalf, and by doing so the people give the Founders successors authorization.

All that is theory.

In actuality, I fear that instead of doing what the people want done, the Founders successors do what they themselves want to do and then tell the people what the people want.
19 -KK-

KrisKrinkle wrote: In response to your posts 33 and 35:

What I set forth in my post 19 is based on Ammendments to the Constitution. I even quoted the ammendments in my post.

The required ammendments are already in place, unless the people have no retained right (under the Ninth Ammendment) to have their representatives act on their behalf to accomplish whatever the people themselves have the reserved power (under the Tenth Ammendment) to accomplish.

You claim:

"-- They were unauthorized" --
-- "while their successors have been authorized, at least in theory."

Just above you base this claim on the 9th & 10th amendments which were in effect since we have had government.

Jeff and others have explained that 'they' have never been authorized to provide for today's "bread and circuses".

Quite simply there are no required amendments "already in place". Never have been.

-- The people have no retained right to have their representatives act on their behalf to accomplish whatever the people wish. -- 'The people' are bound by our constitution, -- as are our fed/state/local governments.

See Article IV, Section 4.
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

And then see the last clause of Section 8 of Article I.
"The Congress shall have Power To...provide for the common Defence and general Welfare of the United States;"

OK, so right there, in the same clause, the Congress is supposed to provide for the defense of the country (Air Force) and the general welfare (Social Security). Would you argue that half the clause is invalid?

"Ships" aren't mentioned either, but clearly the national defence encompasses both.

"Ships" are not mentioned, but the Navy clearly is. If The Consitution must be followed literally, and the founders took the trouble to specifically authorize only an Army and a Navy, then shouldn't that be the limit?

Article 1:
Clause 12:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13:
To provide and maintain a Navy;
Clause 14:
To make Rules for the Government and Regulation of the land and naval Forces;

If the Constitution is to be followed literally, it authorises land and naval forces, but not air forces. On the other hand, if we take an expansive view of the Constitution as a living document, we'd assume that the founding fathers would want the Government to take changes in technology and circumstances into consideration. The Constitution does not ban air forces. Nor does it ban Social Security (or limits on campaign contributions).

Social security is unconstitutional because of the 10th amendment, despite all the pols who have twisted the meaning to allow it.

Amendment X.
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.

Since the "general welfare" clause delegates power to the Congress to provide for the general welfare of the United States, the 10th Amendment doesn't apply. Tha's the short answer. The long answer is contained in this opinion of the Supreme Court:

CHAS. C. STEWARD MACH. CO. v. DAVIS, 301 U.S. 548 (1937)

Here is how FindLaw summarizes the jurispurdence on Social Security:

Social Security Act Cases .
--Although holding that the spending power is not limited by the specific grants of power contained in Article I, Sec. 8, the Court found, nevertheless, that it was qualified by the Tenth Amendment, and on this ground ruled in the Butler case that Congress could not use moneys raised by taxation to ''purchase compliance'' with regulations ''of matters of State concern with respect to which Congress has no authority to interfere.''
Within little more than a year this decision was reduced to narrow proportions by Steward Machine Co. v. Davis, which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a State. To the argument that the tax and credit in combination were ''weapons of coercion, destroying or impairing the autonomy of the States,'' the Court replied that relief of unemployment was a legitimate object of federal expenditure under the ''general welfare'' clause, that the Social Security Act represented a legitimate attempt to solve the problem by the cooperation of State and Federal Governments, that the credit allowed for state taxes bore a reasonable relation ''to the fiscal need subserved by the tax in its normal operation,'' since state unemployment compensation payments would relieve the burden for direct relief borne by the national treasury.
The Court reserved judgment as to the validity of a tax ''if it is laid upon the condition that a State may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power.''

Good night, no minds will be changed here.

I don't expect to change anyone's mind. I'm just explaining what is right.

The people have no retained right to have their representatives act on their behalf to accomplish whatever the people wish. -- 'The people' are bound by our constitution, -- as are our fed/state/local governments.

I never maintained that the people have a retained right to have their representatives act on their behalf to accomplish whatever the people wish.

The argument is that the people have a retained right to have their representatives act on their behalf to accomplish whatever the people themselves have the reserved power to accomplish. As you say, “‘the people' are bound by our constitution, -- as are our fed/state/local governments” so they do not have the reserved power to accomplish whatever they wish.

Jeff and others have explained that 'they' have never been authorized to provide for today's "bread and circuses".

I’d say that they stated “…'they have never been authorized to provide for today's "bread and circuses"’ rather than that they explained it, though I guess they tried. The problem is that in trying to explain, they further stated (more or less) a necessity for amendments that I say already exist as the Ninth and Tenth.

A proper refutation of what I laid out, would have to start from the premise that the people have no retained right to have their representatives act on their behalf to accomplish whatever the people themselves have the reserved power to accomplish. (Actually, there may be other proper refutations, but I can’t think of any offhand. If you've got them, please make them.)

Jeff said that was not his premise. On the other hand, you almost stated it except that you ended with “whatever the people wish” instead of “whatever the people have the reserved power to accomplish.” That’s a major difference and it turned the statement into something I was not trying to say and don’t want to defend.

Perhaps I should assume (though that’s dangerous) that you meant to write that “the people have no retained right to have their representatives act on their behalf to accomplish whatever the people themselves have the reserved power to accomplish.” If that’s the case, why should anyone accept that as valid in view of the Ninth and Tenth Amendments which, without being specific, address the retained rights and reserved powers of the people?

Since you feel that Social Security is unconstitutional and "so are most of the other things the federal government does," do you obediently pay your SS taxes anyway and sheepishly follow all of the other federal laws? Or are you of the belief that since you have superior constitutional knowledge to the Congress, the President, and the Supreme Court that you can do whatever it is that you think is right, regardless of the laws on the books? Do you have the courage to follow your convictions or do you just sit around and whine?

There was a recent case of a fellow who believes as you do. His (common-law) wife was caught breast-feeding her baby while drving, which became a famous case. He even logged on to discuss the issues. I checked his websites and found that he goes to great lengths, and suffers considerably, in his determination not to be governed by laws he considers to be invalid. While I disagree with his principles, I admire his follow-through. Are you like him or do you just complain on bulletin boards?

Been reading your mini-debate here.

Kris, if I am reading you right, I am understanding you to be saying that the people, through their God-given rights as ensured by the Constitution, essentially have the right to hand over to the federal government any of those individual (or states’) rights that they deem fit to hand over (although you appear to be distressed by the fact that that procedure has been taken to the extreme).

One of the (if not the) basic foundational underpinnings of the Constitution is the concept of enumerated powers. Our Founders were (justifiably) obsessed with spelling out, in specific, the – originally countable on the fingers of one hand – powers that were delegated to the federal government. Those powers were the ones that were envisioned as necessary by virtue of the need for large numbers of civilized people to live together, without posing a threat to one another, without being preyed upon by outside enemies, and to be able to preserve the ‘common good’ (without broadening that nebulous term so as to infringe upon individual liberties).

The people (i.e., the states, by virtue of republican representation) cannot abdicate any of their (God-given) liberties simply by passing laws declaring that they wish to do so. Article V of the Constitution must be invoked, and a Constitutional Amendment must be put in place.

Allow me a rather absurd analogy: I think a simplistic one would be having a judge, in a hypothetical family court dispute, declare that a child has vast and certain inalienable rights as a human being, but that his parents have the minimal, legally-prescribed overriding responsibilities to provide necessary food, shelter, discipline and education, by simple virtue of their age and relationship to the child. If the child then decides that he wishes his parents to sit in the classroom in his stead, or to regularly feed him nothing but French fries and soda, that child only need say so (after all, he has been given the personal freedom to do so, since doing so does not fall under the few enumerated powers granted by the court to his parents) -- and without petitioning the court for an addition to the powers granted his parents. That would be foolish, and contrary to the intent of the original court stipulation.

I believe that this entire debate (indeed, most of what is written on this forum) centers around the fact that the American government, over the past half century especially, has usurped many powers that were not enumerated it under the Constitution. The reasons it has been successful in doing so are many. Chief among them is a public ignorance of the Constitution, and a public willingness to allow those rights that were so fervently defended by our Founders to be abdicated via unconstitutional laws passed by the people’s representatives.

Holding fast to the amendment process, as it was originally defined and intended, would most likely have prevented the erosion of individual liberty, and the commensurate growth of federal tyranny. If not, then the erosion of liberty would have been minimal, and would have been evidence of either short-sightedness on the part of our Founders, or mass stupidity on the part of their descendents (with the latter being much more likely).

~ joanie

...and as I said, the right they retain to themselves or the states based on the 9th and 10th are different than the rights or powers that the United States, ie., the Federal Government can exercise.

I am not debating whether the people or the states have retained rights outside of the Constitution. They clearly do.

But the Federal government is constrained by the constitution as to what rights, powers, regulation, etc. it can exercise. The Constitution outlines those specifically and for the United States government to exercise more than what is specifically in there requires another amendment that specifically states it...otherwise it is illegal by definition.

(although you appear to be distressed by the fact that that procedure has been taken to the extreme).

You’ve sure got that right. I am not seeking as much to convince anybody that what I’ve laid out is correct as I am trying to get somebody to convince me it’s wrong.

“…have the right to hand over to the federal government any of those individual (or states’) rights that they deem fit to hand over…”

That doesn't capture my thought. I’d say “have the right to task the Federal Government in its capacity as their agent-employee-servant (it’s supposed to work for us, not the other way around) to do their will absent any prohibition. That last is important. While the people might want to task the government to install Arnold Swarzenegger as president, that is prohibited by the Constitution because he is foreign born. On the other hand, I can’t recall where the Louisiana Purchase was specifically authorized in the Constitution, but I don’t see that it was specifically prohibited if the people wanted it. (And if the Louisiana Purchase was not authorized at all, are the States formed from it legally established as such and are the inhabitants legal citizens? No need to respond, that’s just a thought.)

Holding fast to the amendment process, as it was originally defined and intended, would most likely have prevented the erosion of individual liberty, and the commensurate growth of federal tyranny.

Maybe, but I’m not so sure of that because of “either short-sightedness on the part of our Founders, or mass stupidity on the part of their descendents (with the latter being much more likely).” The Constitution has been amended. Originally, the States selected individuals to represent them at the national level in the Senate That provided a “check and balance” between those representatives and the individuals elected by the people to represent them in the House. But that was changed by Amendment 17. Now all those individuals are elected by the people. Of late I have wondered if Amendment 17 was such a good idea. Then there was Amendment 19. Prohibition certainly worked out well. And then there’s Amendment 26 in which people who are not considered old enough to drink or buy a hand gun or whatever, are considered old enough to vote. I guess if we had held fast to the amendment process we might be better of than we are now, but we’d be headed down the same road because of “…a public ignorance of the Constitution, and a public willingness to allow those rights that were so fervently defended by our Founders to be abdicated…” We’d just have more amendments and many of them would probably be bad.

Congress is supposed to provide for the defense of the country (Air Force) and the general welfare (Social Security).

Air Force does not equal defense.

General welfare does not mean social security.

If you read the article or documents pertaining to the constitution you will find:

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."
Thomas Jefferson

Its really a simple concept.

Regards

J.R.

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