I approach the question from the old philosophers… the same way our Founding Fathers did.
Plato argued that all land is public and we are only caretakers. He separated man into a caste system embodied by the Productive (Workers), Protective (Warriors and Guardians) and Governing (Rulers and Philosopher Kings) persons. His ideal government was one ruled by a philosopher king who ruled through wisdom and reason. Governments, then, are instruments to provide for humanity, and to direct its efforts. It is a very communal view much like the Soviet reality where all are not equal—someone has to be in charge.
Aristotle contends that the state exists for the good of the individual. He preferred the rule of law over the rule of any of the citizens. This prevents the private interests of men from forming the laws for personal or factional benefit… laws do not have private interests. He was the first to argue for a constitutional system with a separation of the rulership authority between executive, legislative and judicial functions with checks and balances. He rejected Platonic communism and the other extreme: radical democracy. Aristotle noted that individuals form communities to secure life’s necessities. He viewed the proper end of government to be the promotion of its citizens’ happiness. The goodness of the community (polis), then, was directly related to the self-actualization of the individuals who comprised it.
When John Locke looked at the problem, he started from a Platonic perspective. He saw all property as public and the goal of government to be the management of public property. Through reason, though, he arrived at a different conclusion. Man is a sovereign individual. Man’s thoughts are his own. A man should benefit from the fruit of his own labor. The difference between arable land and cultivated land is the labor of the individual. The individual should profit from his labor. Therefore, in order to preserve the public good, the central function of government must be the protection of private property. Embodied in these beliefs are many of our first freedoms enshrined in the Bill of Rights.
According to Locke all legitimate political power derives solely from the consent of the governed who entrust their "lives, liberties, and possessions" to the oversight of the community as a whole, as expressed in the majority of its legislative body. What matters is the legislative power—the ability to provide for social order and the common good by setting standing laws over the acquisition, preservation, and transfer of property. The commonwealth thus serves as "umpire" in the adjudication of property disputes among those who choose to be governed in this way. All men are equal before the law and the law was immutable without the authority of the legislative body which gave legitimacy and authority to the other branches of government.
Within reasonable limits, then, individuals are free to pursue their own “life, health, liberty, and possessions.” This should sound familiar. Although Locke isn’t the only source of our legal construct, he is definitely influential.
From these principles, we get the opening of the Declaration of Independence: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their CREATOR, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.--That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
This flows naturally into the Preamble of the Constitution of the United States of America: “WE, the PEOPLE of the UNITED STATES, in order to form a more perfect union, establish justice, ensure 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.
Therefore, what are the proper functions of government? The following:
- The protection of private property
-- This includes the ultimate private property—our conscience and bodies
To that end, we have empowered our government to
- Defend streets, borders and public resources
- Negotiate treaties
- Adjudicate disputes (tort, justice and crime)
- Enforce contracts and property rights
- Ensure the navigability of travel and commerce routes
- Collect taxes for the operational purposes of the government charter
- Protection of the natural rights of citizens
Current functions of government which are anathema to a free society:
- Education: A free people can not logically exercise republican control over the very state that educates it. The will of the people is then molded by the will of the state.
- Charity and pensions: It is a violation of property rights for the government to redistribute wealth according to its view of equity. It is inefficient for a central government to administer a local problem on a national scale. Before this was allowed in our society, men were hired by the state for menial chores, if needed, rather than paid to provide no work at all. Charity was given by churches and others disposed to charity.
- Direct Taxation: The government wields control over its citizens by adjusting the tax roles to encourage behaviors. This reverses the societal contract.
- Banking and Economic Control: Except for adjudicating disputes between claimants, the government of a free people should not be in control of the wealth of its citizens. In a free society, societal market forces ensure economic stability. Government intervention has repeatedly harmed the economy (FDR’s New Deal and Richard Nixon’s Wage and Price Controls are two recent examples).
- Health Care: The government may encourage good health, however if it gains control over the health of its citizens, it gains control of the citizens. The health of every citizen is then the prerogative of the state and every citizen must be instructed in proper care. Health care is a private transaction between a patient and the health care professional… the patient trades his money for the training and expertise of the professional. Introducing government into the transaction makes a slave of the professional who must conform to protocol rather than schooling and ward of the patient who must accept the care provided without competitive options.
- Imposition of Values: It is a natural right of man to freely associate with those of his choosing. When the government orders citizens to respect those they view as reprehensible and serve in their markets those they prefer to refuse, the government has chosen its citizens’ associations for them.
Now, the above supposes the central federal government and the anathemas are in their dealings with citizens as individuals. What of local governments? Just as our Founding Fathers believed, all politics are local. You have to look at who is the constituency of the governmental body. At the national level, the constituency is the States. Therefore, the national government should be concerned with disputes between the states and protection of the rights of the individual states. The limits enshrined in the Bill of Rights are to prevent encroachment of governmental power into the rights held by individuals and States (see 9th and 10th Amendments).
At the local level, the government is defined by the people through the community contract. The Constitution guarantees to all citizens a republican form of government--even at the local level. However, the will of the majority is expressed more freely at this level and the proper role of local government is defined more broadly by the governed people.
“The government of the United States is a definite government, confined to specified objects. It is not like state governments, whose powers are more general. Charity is no part of the legislative duty of the government.” — James Madison, speech in the House of Representatives, January 10, 1794
"The care of human life and happiness, and not their destruction, is the first and only object of good government." – Thomas Jefferson
“I cannot find any authority in the Constitution for public charity. [To approve the measure] would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded.” — President Franklin Pierce’s 1854 veto of a measure to help the mentally ill.
He didn't allow for the useless classes, the leeches, thieves, thugs and MSM.
Your response is good. I would recommend that, as a starting point, you use the Constitution as a guide to the limitations of federal government. For state levels, use state constitutions.
Good reply. I’d also show them the enumerated powers in the Constitution. Also remind them that the people have unenumerated rights and the the government does not have unenumerated powers.
Ping for feedback.
After you've read and digested it I'll read your little treatise.
Best,
L
Bump for later study.
IMHO, the essential problem we face is the New Deal interpretation of the Commerce Clause.
From Joseph Stories Commentaries on the Constitution (more here)
"The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments."
The New Deal's "substantial effects" doctrine has done precisely what Story warned against at the outset.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.
Lamar Alexander boiled it down to a one-liner:
“If you can find it in the Yellow Pages, then government ought not to be doing it.”
>>Regulation of the environment so as to provide reasonably safe air and water<<
Obviously, you are not regulating the environment but people’s actions.
The foundation of American government was the social compact - where each individual on an equal basis compacted with others to lay aside their natural right to use personal force against trespass/injury, in exchange for an equitable institutional process to define, protect, prosecute and punish the trespass/injury of one against another.
Under the traditions of law we inherited, Viking/Saxon (tort) law was framed in terms of injuries to the individual rights of others: (1) physical rights of “were” (life or limb); psychological status rights of “mund” (peace or privacy); and ownership rights of private property.
Under the traditions of law we inherited from the maxims of Roman law came the basis of property law “sic utere tuo ut alienum non laedas. - each one must so use his own as not to injure his neighbor.” In addition to protections against individual trespass, the “police powers of government” were expanded to include the concept of public nuisance - dangers/injuries/trespass of such magnitude that they affect the general public. This is where government regulation of personal actions to protect public health, safety and morals from substantial injury came in.
In addition to these core government functions, was added the function of advancing or promoting the public benefit. (Unfortunately in the United States in the 20th century, the regulatory powers expanded as a de facto power to promote the public interest by force instead of just preventing injury.) This traditionally included the creation of roads and other infrastructure. This was to be accomplished by taxation for the common good and the creation of publicly owned property. All property was held subject to eminent domain - meaning that if the public needed the property for a legitimate public use, it could be taken as long as the property owner was made whole with just compensation.
In the United States, a great deal of effort was made to limit the power of government over individual liberty and freedom and to protect the individual from the tyranny of the majority.
That is the core of government according to Western and American traditions.
I firmly believe that it is contract law that drives much of the prosperity we see in America. That's one of the reasons I view with great alarm trends over the past decade or so of abrogating contracts by governmental fiat. One recent example of this is the pressure brought to bear by the feds regarding "sub-prime" lending. While in this particular case they didn't actually come out and impose their will with tanks, the threat was clearly there.
Unless you're arguing with an outright communist (there are more of them around than you'd believe, though they may not realize it themselves), you might want to bring out Marx's Communist Manifesto. Though many won't particularly care that just about every single one of his 10 planks are official policy of the U.S. government, some will see the death and destruction Karl has wrought and consider that following down that particular path might not be the best thing to do.
I must say though, that attempting to argue from first principles is a tough row to hoe, as most people have neither the time nor inclination to examine why they believe what they do.
The problem is not with government and constitutions but with confusing the state with government. The Press, for example, is an institution of the state but not part of government. Government has a role that varies from state to state. The state will have all these functions and many more not usually seen clearly as state institutions, and government will have some regulatory power over markets. The military is not part of government but an institution of the state although at present funded by government to avoid corruption.
Didn’t this ground get plowed in the Federalist Papers? After all, it was the justification for ratification of the new Constitution.