AKbear
Since Jan 6, 2000
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AKbear
Since Jan 6, 2000
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This has been expanded a bit:
Definitions
1. A Democracy: Three wolves and a sheep voting on dinner.
2. A Republic: The flock gets to vote for which wolves vote on dinner.
3. A Constitutional Republic: Voting on dinner is expressly forbidden, and the sheep are armed.
4. Federal Government: The means by which the sheep will be fooled into voting for a Democracy.
5. Freedom: Two very hungry wolves looking for dinner and finding a very well-informed and well-armed sheep.
"Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the form of kings to govern him? Let history answer this question." --Thomas Jefferson: 1st Inaugural, 1801. ME 3:320
"Were parties here divided merely by a greediness for office,...to take a part with either would be unworthy of a reasonable or moral man." --Thomas Jefferson to William Branch Giles, 1795. ME 9:317
"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." --Thomas Jefferson to Archibald Stuart, 1791. ME 8:276
No man's life, liberty or fortune is safe while our legislature is in session.--- Benjamin Franklin
The Constitution only gives people the right to pursue happiness. You have to catch it yourself. -Ben Franklin
THE SOLDIER'S TRAINING MANUAL,... issued by the War Department, November 30, 1928, set forth the exact and truthful definition of a democracy and republic - this manual was ordered destroyed by F.D. Roosevelt.
Democary:
1. A government of masses.
2. Authority derived though mass meeting or any form of dirrect expression.
3. Results in mobocary.
4. Attiude toward property is communistic-negating property rights.
5. Attiude toward law is that the will of majority shall regulate, whether it be based upond deliberation or government by passion, prejudice, and impules, with out restraint or regard to consequences.
6. Results in demagogism, license, agitation, discontent, anarchy.
Republic:
1. Authority is derived through the election by the people of public officals best fitted to represent them.
2. Attitude toward propery is respect for laws and individual rights, and a sensible economic procedure.
3. Attitude toward law is administration of justice in accord with fixed principles and established evidence, with a strict regard to consequencces.
4. A greater number of Citizens and extent of territory may be brought by its compass.
5. Avoids the dangerous extreme of tyranny or mobocracy.
6. Results in statesmanship, liberty, reason, justice, contentment, and progress.
After the Constitution was signed by the Constitutional Congress but before ratification, there was much debate over whether it should be ratified. There were primarily two groups who were the most vocal, the Anti-Federalists and the Federalists.
The Anti-Federalists were of the opinion that the Articles of Confederation were sufficent to govern the new nation after the Revolutionary war. The Federalists were the ones pushing the new Constitution because of the "Insufficiency of the Present Confederation to Preserve the Union."
The Anti-Federalists were opposed to strengthening the central government any further than it was during the short 6 years the Articles of Confederation were in force. After the Constitutional Congress signed the new Constitution, the Anti-Federalists wrote several letters (which came to be called The Anti-Federalist Papers) under several pseudonyms. Some of them were, Centinel (Samuel Bryan), A Federal Farmer(Richard Henry Lee? or Melancton Smith?), Brutus(Robert Yates), Cato (George Clinton?), John DeWitt (?), and others. Patrick Henry was also an Anti-Federalist, as well.
These letters pointed out flaws in the new Constitution and accused the Federalists of giving the central government too much power which would ultimately lead to tyranny.
The Federalists responded to these accusations by publishing a series of letters (The Federalist Papers) written under the pseudonym Publius. The writers of these letters were Alexander Hamilton, James Madison, and John Jay. These letters were written to assuage the fears of the people and to, basically, tell what their intent and reasoning behind what was written in the new document.
Some still debate whether the Articles of Confederation or the Constitution were the superior document for the governance of the new nation, but the point is moot. We now live under the document issued out of the Constitutional Convention held in Philadelphia during May through September of 1787, and finally ratified by 9 states in June 1788, finally taking effect on March 4, 1798. Several other states had stipulated they would ratify it only if it included a Bill of Rights. Twelve articles were put forth to the states and 10 were ratified and formally adopted as the first 10 amendments on December 15, 1791.
Over 200 years has passed since its adoption, and we are seeing many of the Anti-Federalist's fears being realized. The Anti-Federalists concerns were primarily four things. The primary one being that there was no Bill of Rights incorporated in the new constitution. Some of the others were powers given to the central government without sufficently strong limitations to prevent the government from overreaching its authority.
The importance of the Federalist papers is that of a precise record of how the Federalists saw the provisions of the Constitution should be interpreted or "constructed."
From The Constitution Society's website:
Those opposing ratification, or at least raising doubts about it, were not so much arguing against the ratification of some kind of federal constitution, as against expansive construction of provisions delegating powers to the national government, and the responses from pro-ratificationists largely consisted of assurances that the delegations of power would be constructed strictly and narrowly. Therefore, to win the support of their opponents, the pro-ratificationists essentially had to consent to a doctrine of interpretation that must be considered a part of the Constitution, and that therefore must be the basis for interpretation today. This doctrine can be summed up by saying, "if a construction would have been objectionable to the anti-federalists, it should be initially presumed unconstitutional".
So for all intents and purposes, the Federalist Papers must be considered when interpreting the provisions of the Constitution.
Three main clauses, all in Article I, Section 8, have been the main source of abuse of government power. Primarily since the "New Deal" of Franklin Rooservelt, the "interstate commerce" clause, the "necessary and proper" clause and the "general welfare" clause have generated reams of legislation that, when considered against the assurances in the Federalist Papers, are wholly unconstitutional. Some of the blame can be traced back to the administration of Woodrow Wilson, some back to Civil War days, and some even back to the dawn of the nation as seen in such legislation as the Aliens and Seditions act of 1798.
Lets take each of those clauses that have been abused and see what has been done and why legislation passed under the color of each of them is unconstitutional.
First of all, lets look at Article I, Section 8 of the Constitution of the United States of America.
Section. 8. 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;To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
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;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And
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.
Article I describes the legislative branch of our government. Section 1-7 lay out what it is, how it is to be constructed, the number of representatives and senators, and generally how business is to be conducted. Section 9 are some specific things the legislative branch is not allowed to do.
In Federalist #14, James Madison attempts to calm fears that Section 8 gives too much power to the government. There was some concern that a republic cannot govern such a large area as the new nation covered, and expected to cover in the future. Mr. Madison wrote #14 to talk about the difference between a democracy and a republic. He agreed that in a democracy, it would be impossible to allow all to come to a central meeting place to participate in a true democracy. However, in a republic, which is limited in the scope of its powers, there is no need for direct participation. As for the reasons a republic was superior to a democracy, he says:
In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.
When a complaint regarding the "general welfare" clause (the object of our present section) being too broad and giving the government too broad a power, Mr. Madison said in Federalist #41:
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 defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor 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 expressions just cited, the authors of the objection might have had some color 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 color 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 powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
As can be seen, he clearly says that "the power "to lay and collect taxes, duties, imposts, and excises, ... and provide ... general welfare of the United States," is not a specific power, but a statement of introduction for the following 17 items in which congress did have the power to lay and collect taxes, duties, imposts, and excises for. The only other time the words "general welfare" show up in the Constitution is in the Preamble. The Preamble grants no powers, but is simply an introduction which lists the principles of the Constitution as a whole.
The much abused "necessary and proper" clause reads:
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.
Well, lets take a closer look at that one. It is actually pretty simple to disabuse anyone of the notion that this clause gives plenary power to congress. The key word in all that is "foregoing." Foregoing, as in the previous 16 clauses of Article I, Section 8. Pretty simple, eh? Obviously not to politicians and statists. They seem to think that they can pretty much do what they want with this one.
Looking back at Article I, Section 8, we see that there is a clause which reads:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
In the early days of the colonies which eventually came to be the United States of America, most trade was primarily merchantilist in nature. England needed some of the raw materials from the colonies, but they also need specie, or hard cash. Gold, silver, or other valuable materials were necessary because of a long war with France. Therefore, they proceded to lay on some taxes on the colonies because there was ready wealth to be taxed there.
From America's Colonial Period by Carole E. Scott, Professor of Economics, Richards College of Business, State University of West Georgia:
There were a series of revenue-raising measures passed by Parliament: the Sugar act of 1764, the Stamp and Quartering Acts of 1765, the Townshend Acts of 1767, the Tea Act of 1773, and others. "Before 1763," says a historian, "only southerners had much reason to chafe under Empire regulations. But enforcement of the Sugar Act restrictions on trade with the West Indies alienated articulate northern merchants, as well, while the highly visible Stamp Act tax on documents irritated just about everyone in business."Historians disagree as to whether membership in the British Empire was on balance a net benefit or a net loss to the colonies.
The Sugar Act sparked a boycott of imports from Great Britain. A boycott aimed at the Townsend Acts levied import duties on various colonial imports led to imports falling by one-third and Parliament repealing them. Opposition to the Stamp Act led to it be repealed. Therefore, the colonists learned that resistance worked. The British responded by increasing the legal authority of colonial administrators and by sending troops to back that authority.
The objective of Parliament in passing the Sugar Act was to protect West Indian interests by placing taxes on foreign sugar and molasses. The Stamp Act was a way to collect a minor amount of revenue from the issuance of legal documents. The Currency Act (1764) was designed to make self limiting colonial issuance of paper money by establishing reserves for its redemption.
The 1773 Tea Act ran into very strong resistance, including the Boston Tea Party. Outrage was generated in the colonies in 1774 by the passage of the Quebec Act, which limited the expansion of the colonies to the West. Various objectives have been put forth for this Act having been passed, including to stop the colonists from further encroaching on Indian lands and, as a result, initiating hostilities and protecting the trade of Hudson Bay Company. It infuriated colonists wanting to settle in the West and land speculators.
It wasn't paying taxes or the amount they had to pay, which was relatively low, that seems to have angered the colonists most; instead, it was having no say in how much and in what way they would be taxed. Having a say was a right they felt entitled to as Englishmen.
One economic historian (Jonathan Hughes) describes government then and today in this way: "Eighteenth-century government, like most governments now, was one of organized special interests gaining advantages for themselves at the expense of the unorganized. Subsidies here, taxes there, prohibitions, special grants of privilege, year after year, decade after decade, had produced the 'British government'."
Basically, the colonists didn't mind paying taxes, they just wanted to be represented as equally as any "special interest."
During the debates on the Constitution, one of the prime issues was the division of power between the states and the proposed central government. Some (very few) were in favor of abolishing the states and forming one giant nation. Others were for keeping the states as the supreme power and primarily having the central government subordinate to it. There was much debate over whether the central government would have the power to "negative" states laws in areas where they were "incompetent" or where they would conflict with the interests of all the states equally.
It was decided that the federal government would have the power in some limited instances. Foreign commmerce was considered to be within the purview of the federal government's realm of power, obviously. However, in order to complete the central government's power over foreign commerce, they had to include commerce between states as well. This was alluded to in Federalist # 42 by James Madison when he says:
The powers included in the third class are those which provide for the harmony and proper intercourse among the States.Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.
The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.
Commerce, as defined in the American Heritage Dictionary of the English Language is:
com·merce (kmrs)
n.
1. The buying and selling of goods, especially on a large scale, as between cities or nations. See Synonyms at business.
2. Intellectual exchange or social interaction.
3. Sexual intercourse.--------------------------------------------------------------------------------
[French, from Old French, from Latin commercium : com-, com- + merx, merc-, merchandise.]
Obviously, we are talking about definition 1 here. :^)
The states (or actually, individuals) decide what and with whom they are going to trade, they didn't want a central government to dictate any of that sort of thing. They already had quite enough of that from England. They couldn't even conceive of a government dictating how much it would cost to ship something to another country or state. Or what could be shipped across state lines. Commerce, with the exception of taxes, duties, imposts, and excises, was completely unencumbered by government regulation. And they wanted to keep it that way.
Many laws have been passed under the auspices of these provisions of the Constitution. Many are compeletly and wholly constitutional, but there are reams of legislation which should be thrown out and judged unconstitutional.
Within the last several years, we are seeing the Supreme Court throw out laws which, by any normal reading of the commerce clause, would in no way support them.
Guns are regulated by the commerce clause more often than not. Congress has decided that since guns are shipped in interstate commerce, they can be regulated under the auspices of that clause. One of those laws was recently thrown out by the Supreme Court in United States v. Lopez 000 U.S. U10287 (1995). The court ruled:
In reversing, the Court of Appeals held that, in light of what it characterized as insufficient congressional findings and legislative history, 922(q) is invalid as beyond Congress' power under the Commerce Clause....snip...
To uphold the Government's contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
But then congress turned right around and re-passed the law using some mealy-mouthed wording to justify it.
From 18 USC 922:
(q)(1) The Congress finds and declares that -
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary (FOOTNOTE 2) the House of Representatives and the Committee on the Judiciary of the Senate; (FOOTNOTE 2) So in original. Probably should be followed by ''of''.
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves - even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation's schools by enactment of this subsection.
This is the law at present. Congress didn't like the Supreme Court ruling and put into the law, their "findings" as to why they think they can regulate guns around schools. This is just a foot in the door so they can "regulate" guns in other places.
To be continued, stay tuned. :^)