A To-Do List

There is much consternation to the effect that politics has become a full body contact sport. Many are dismayed because all that is important is winning. Pubs and Dems will say anything and do anything to win, but the end of world is not at hand, not if we are up to the challenge.

Libertarians think Republicans are Clinton Lite. Conservatives are depressed because congressional spending continues unabated. Conservatives and Libertarians are, both, ready ‘to give up the ghost’, ‘shed that mortal coil’ and ‘head for the hills’, perhaps for good reason; watching the evolution of the new Medicare entitlement alone is frightening. Those who remember Medicare 1 was projected to cost 9 billion dollars by 1990, yet ended up costing 7 times as much, see little hope for small government.

Of course, Progressives are pleased as Punch. They believe Health care is a right; a right conferred by whom or at whose expense is a question never raised or answered. Progressives, if pressed, would answer at the government’s expense, but as the government has no money so that begs the question.

But, railing at fate alone only leads to frustration and defeat. It is like trying to fix a leak by bailing water. Instead of light-headedness in the face of the dizzying array of government or vituperation, let’s re-double our efforts to attack the root causes of the problem.

What are the roots of the problem? The income tax, paper money and ‘far fetched’ interpretations of the Interstate Commerce Clause, Article 1, Section 8 of the US Constitution.

In 1913, with malice of forethought, Congress created the Income Tax and the Federal Reserve, ostensibly to tame the business cycle of boom and bust, but with the full realization that it would increase by infinity their ability to tax, or less charitably, buy votes.

Taxes have never been popular in America. The first federal income tax was imposed during the Civil War. It proved so unpopular, however, that it was soon repealed. Congress tried it again in the 1890s, but the Supreme Court came to our rescue, declaring it unconstitutional in 1895. Referring to the explicit prohibition against direct taxation in Article I, the court argued that “an income tax would excessively enhance federal power in relation to state power”. Precognition?

Ever the patriots, Congress would not take no for an answer. They nullified the ruling by an overwhelming majority and proposed a 16th Amendment. Three-fourths of the state legislatures flushed with the thought of empire inspired by Theodore Roosevelt ratified the villainous deed.

Then, in the same prolific year, Congress passed the Federal Reserve Act giving the government the right to print paper money unbacked by gold. FDR realized there simply wasn’t enough gold in Ft. Knox to finance his grand vision of a New Deal and removed the final barrier. Worthless money became a fait d’accompli (at least officially) in the repeal of the Gold Standard in the 30s.

Abusive interpretations of the Interstate Commerce clause began almost before the ink was dry on the Constitution. Most statesmen recognized a need for uniform interstate commerce between the various States. Under the Articles of Confederation, some states had treated others as foreign countries, levying all manner of discriminatory taxes, licensing provisions, port regulations, and the like.

James Madison argued: "We are now obliged to defend against those lawless attempts from the interfering regulations of different States, with little success...New York levies money from New Jersey by her imposts. In New Jersey, instead of cooperating with New York, the Legislature favors violations on her regulations."

To prevent trade wars among the states, the Constitution gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The word "regulate", at the time, meant to make regular or uniform. The clear intent was to give Congress the power to prevent discriminatory trade practices among the states. Jefferson remarked: "The power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes." (Opinion on Bank, 1791

Controversy, even in Colonial times, makes it clear that Politicians have always been scoundrels looking for loopholes in the Constitutional safeguards against the growth of federal power. They happily ignored the ample warnings by the Founders.

Jefferson cautioned that, "Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." (Thomas Jefferson to Albert Gallatin, 1808)

He felt that, "When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless." (Thomas Jefferson to Wilson Nicholas, 1803), but Congress was not dissuaded. The Supreme Court tried to stem the tide by holding legislation to the limits defined by the enumerated powers. But, pressure from Congress and Presidents gradually overcame the resistance of the courts.

Congress hit the jackpot with the commerce clause. The floodgates opened in 1889 when the Supreme Court ruled that the commerce clause was a positive grant of power to regulate the economy. "The reasons which may have caused the framers of the Constitution to repose the power to regulate commerce in Congress do not...affect or limit the extent of the power itself," they arbitrarily reasoned; and once the intent of the framers of the law was ignored, any interpretation became possible.

From 1889 to 1941, the Court maintained some restraint on Congress, allowing them to only regulate activities that directly involved interstate commerce. The laws they upheld still did not conform to the enumerated powers, but the justices were diligent in looking for some real connection with interstate commerce. In 1941, when our ‘beloved’ FDR threatened to stack the court with Justices who would see things his way, the Supreme Court capitulated.

The precedent involved a farmer named Filburn who was fined by the federal government for growing 461 bushels of wheat in violation of FDR’s Agriculture Adjustment Act which allowed him only 222. Even though Filburn used the surplus for feed on his own farm and for his family, the Court ruled that he affected interstate commerce and came under Congress’ regulatory jurisdiction.

With the capitulation of the courts, government control over the economy and other aspects of American life have grown like a ‘Topsy’. The Justice Department actually cited the Commerce clause in its arguments before the courts in defense of the Patriot Act. Clearly, there is no connection between the Patriot Act and commerce, but precedents set by the FBI during the 40s, which have resisted challenge, make Ashcroft’s tactics possible.

At the start of the Depression, Government consumed 3 percent of the economy’s output; it now consumes about 25 percent, which will swiftly rise to 40 percent after passage of the new Medicare bill. The genie of big government was released from the bottle after 150 years and the stopper not seen in 60 years.

There is no way to throw a switch and take American back to the 19th Century short of a new American Revolution, and that will not occur. If there were a lever to pull, I would be the first to throw it. Instead of fussing about everything under the sun, let’s narrow the focus. The mess was over a 100 years in the making and won’t be solved overnight. We should not lose hope because devolution will not be immediate.

Clearly, a frontal assault on the 16th Amendment can not succeed. The issue does not inspire public support. It frightens too many who realize that the move would end social programs, including Social Security and Medicare. They are not wise or informed enough to realize they would be better off without them. For example, how they would handle Grandma and Grandpa becoming part of family again. This is little confidence that private or religious philanthropical institutions would fill the void.

But the general public would support a national sales tax or a flat tax, and so could Libertarians and Conservatives, as long as the IRS is eliminated. (Nothing can remain to rise like a Phoenix from the ashes.) A sales tax with an income tax or a flat tax with IRS provisos would be the worse of both possible worlds.

Once a sales or flat tax is in place and government no longer ‘clouds the minds of men, Americans will see how much the government spends. With transparency in place, we can begin the process of cutting taxes and swapping federal for local control. Libertarians would need to support the intermediary step and not allow the good to be sacrificed to perfection. Conservatives and Republicans would need to insist that Bush accomplish this in his second term or refuse to vote for him in ’84.

With a more rational tax, we could tackle reverting to the Gold standard. Undoing this evil will require effort and coordination with foreign governments. But foreign nations willingly followed us into this cul de sac in the 20th Century, so they should be willing to follow us out in the 21st.

Court challenges limiting the interpretation of the Commerce Clause couldn’t be more timely with the battle against the Patriot Act.

We should do these three things and stop obsessing over the rest. With these battles won, the rest will take care of itself. For extra credit, make a contribution to reforming politics by organizing for the repeal of the 17th Amendment. Success is highly possible because liberals are not organized against it, and many may even join us.

Here in a nutshell are a few active steps we could take as citizens to start rolling the government back. Working to achieve these goals would take our minds from all the doom and gloom we see on the web pages.

You are correct:

Amendments to the Constitution Twenty-seven amendments have been added to the Constitution since 1789. The first ten amendments, known as the Bill of Rights, were adopted as a unit in 1791.

Although the federal government is required by the provisions of the Constitution to respect the individual citizen's basic rights, such as right of trial by jury (Article I, Sec. 9), the most significant guarantees for individual civil rights were provided by ratification of the Bill of Rights (Amendments 1-10). The First Amendment guarantees freedom of religion, speech, and the press, the rights of peaceful assembly and petition. Other amendments guarantee private property, fair treatment of those accused of crimes, such as unreasonable search and seizure, freedom from self-incrimination, a speedy and impartial jury trial, and representation by counsel.

Other amendments provided for abolishing slavery (13th - 1865), universal male suffrage [right to vote] (15th - 1870), a federal income tax (16th - 1913), direct election of U.S. Senators (17th - 1913), women's suffrage (19th - 1920), limiting to two the number of terms any one person may serve as president (22nd - 1951), suffrage to citizens 18 years and older (26th - 1970). The 18th Amendment (1919), mandating nationwide prohibition of alcoholic beverages, met with open defiance; the 21st Amendment (1933) repealed the failed 18th Amendment. An attempt to pass an Equal Rights Amendment (1972) fell three states short of ratification; it was reintroduced in Congress in 1982.

The 14th Amendment, ratified in 1868, placed several significant limitations on the powers of the states. It extended the federal protections of the Bill of Rights to citizens under state law, who previously had to look to each state constitution for such rights. The other provision of the 14th Amendment which places limits upon the powers of the state is the guarantee of "equal protection under the law" for all citizens of the United States. The Supreme Court applied this clause in its landmark decision outlawing school segregation (Brown v. Board of Education of Topeka).

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