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Opinion: Our Constitution and Enumerated Powers

Opinion

Constitution | Image by Shutterstock

The knowledge of the Constitution and the Framers’ intent in creating it are considerably less than they should be in today’s world. Contrary to what people believe the Constitution says what the Federal Government can do, its limited powers, called the Enumerated Powers and nothing more. After its passage, there were Framers that wanted a written Bill of Rights because they wanted to be sure that certain rights were spelled out as being untouchable by the Federal Government because they saw the Government’s role as one of protecting those rights and intended to create an extremely limited role for Government.  John Adams described it best when he said, “You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.” Congress does not give us rights; their job is to protect our natural or God-given rights.  That desire to protect our God-given rights gave us the first ten Amendments of the Constitution, the Bill of Rights.  Those rights spelled out in the Bill of Rights are by no means the only rights we have but they wanted to ensure government could not encroach on those because of their prior experience with the all-powerful government of the British Crown.  The Framers knew that power corrupts people and absolute power corrupts them absolutely.  The most forgotten Amendment of the Bill of Rights is the Tenth Amendment, which states, “The powers 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.”  What does that mean?  It means that if the power was not specifically given to the Government by the Constitution that power belongs to the States and the people, period.  The Framers did not trust big Government as they had just fought a long and costly war against Britain to get away from one. As Thomas Paine said, “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.” We have an intolerable one today.

Is what we have today, a limited Government?  The short and quick answer is no.  Our Constitution does not authorize the Government to do many of the things it is doing today.  Social Security, Medicare, Medicaid, Obamacare, Food Stamps, Welfare, the FDA, Department of Education, Department of Transportation, Department of Energy, the EPA, Farm Subsidies, bank bailouts, etc., are not enumerated powers in the Constitution.  Therefore, the Federal Government is not empowered to provide those things no matter how much our Congressional representatives or their Parties may desire it.  To quote the late economist Walter Williams, “Nowhere in the Constitution do we find the authority for Congress to tax and spend for up to three-quarters of what Congress taxes and spends for today.” Whether we think the programs our taxes pay for are good or bad makes no difference, the Constitution does not authorize the Federal Government to do them.  Since the 1930’s we have allowed the Government to take actions, create laws, create programs, tax and spend Americans’ hard-earned tax dollars that they were never allowed by our Constitution. For example, prior to the 1930s as written by David Benner of the Tenth AmendmentCenter.com “On the last day of his administration, March 3, 1817, President James Madison vetoed the Bonus Bill of 1817 – a plan that called for the federal construction of various roads, bridges, and canals throughout the country…Instead of upholding his own personal proclivities and allowing the Constitution to be undermined, he maintained that the Constitution was one of specific enumerated powers, and the document contained no expressed power for the federal government to do such a thing. “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution,” he said, “and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.” So, prior to the 1930s charity was provided by neighbors, towns, churches and charitable organizations created for just that purpose. The government had no role in the provision of charity or programs designed to act as a replacement for charity.

What is charity? Charity is when a person or group of people or organization willingly gives of their money, time or expertise to lend assistance to a person or group needing that assistance. The key to it is, charity is given by choice, voluntarily, to those deemed to need the help. The government by its nature cannot be charitable as the money it has to spend is the money it takes from working people and businesses through taxes. Taxation is not voluntary; it is a mandatory taking that we as taxpayers cannot refuse. The taking is by force; in this case by force of law, but whether by force of law or at the point of a gun or knife, it is taking your money that you cannot refuse to give, by someone or some entity to give to someone else i.e., theft.

The fact that the government creates a program that distributes money to another group of people who may have a need is immaterial, no matter how great the need or the sympathy felt for those in need. Government does not do anything very well, the Framers’ knew that, so they limited the areas of Government involvement through the Constitution. Social programs are best left to the States, Citizens, Churches and Charitable organizations.

By the Constitution, Congress has certain powers as specified by Article 1 Section 8 of the Constitution and those powers are known as the Enumerated Powers.   They include 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; but all Duties, imposts and excises shall be uniform throughout the United States.”  The government can borrow money on the credit of the United States, regulate commerce with foreign nations and between the States and the Indian Tribes, create Uniform laws of Naturalization and bankruptcies, coin money and regulate its value, fix the Standard of Weights and Measures, punish Counterfeiting, establish Post offices and post roads, promote scientific progress and “useful arts” through a system of patents, create a federal court system below the Supreme Court, define and punish Piracy at sea, declare War, grant letters of Marque, 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; and to exercise authority over all places purchased by the consent of the Legislatures of the states for the erection of Forts, Magazines, Arsenals, dockyards and other needful buildings.  To make all laws that are necessary and proper for the carrying into execution of the foregoing powers.

The section that seemingly opened the door to rampant Government creation of the plethora of programs and policies such as Social Security, Medicare, Food Stamps, etc. is the line in Section 8 that says, “and provide for the common Defense and general welfare of the United States.”  Congress and the political Parties have adopted the definition of that phrase to mean they can tax and spend for any reason without limitation. Really?

A quote from the 10th Amendment center writer, Mike Maharrey, where he quotes James Madison is appropriate here:

“During the ratification debates, anti-federalists who opposed the Constitution, voiced fears that people … would come along and assert that the term “general welfare” granted unlimited power to the federal government. Supporters of the Constitution swore it would not. Even Alexander Hamilton, the framer most in favor of expansive federal power, conceded as much in Federalist 83. “This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Madison specifically addressed the anti-federalist fears in Federalist 41.

“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 to first use a general phrase, and then explain and would 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 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.”

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

So, as you can see it was apparent that the founders meant “provide for the Common Defense and the General Welfare within the enumerated powers and not as a separate power in and of itself.

So, what does all this Constitutional mumbo jumbo mean for today’s government?  It means the plans of the Left are Unconstitutional in total.  The Green New Deal is not a government program authorized by the Federal Government, the Department of Education is unconstitutional, the Federal Welfare and Food stamp programs are unconstitutional, the construction of roads except for postal roads, the development of the infrastructure, and the construction of bridges are all not permissible.  Forcing Racial Equity programs into schools and businesses is not allowed.  Federal funding of schools is Unconstitutional, Social Security is not allowed, Medicare is not allowed.  Washington D.C. cannot be a State without the permission of the states it resides in Virginia and Maryland and was set aside specifically as a special District.  The Federal Government, by the Enumerated Powers, does not own land in any of the states except for land purchased from the states for “the erection of Forts, Magazines, Arsenals, dockyards and other needful buildings.”  This would mean that the huge expanse of Federal Lands in the West and other parts of the country should be returned to the states in which they are located unless purchased with the permission of the legislatures of those states.  Laws regarding Hate Speech are Unconstitutional as a violation of freedom of speech in the 1st Amendment and on and on.  School choice is NOT a Federal issue it is a State issue as Education is NOT an enumerated power granted to the Federal Government. They cannot tell local school districts what they can or cannot teach, how they can spend property tax dollars in support of education through public, private, charter or homeschooling, nor can they require racial diversity training in the schools.  They cannot provide funding to local schools of any kind nor can they mandate schools to provide certain curricula.  The 40+ executive orders issued by President Biden are more than likely all unconstitutional if they require spending of Federal Tax dollars to accomplish them.

I realize that many people, including myself, receive Social Security and Medicare benefits, but those programs must be wound down so that those on them today can continue to receive the benefits they were taxed on during their working lives until they pass on.  New workers or workers under 50 years of age cannot access any of the programs, so their employers, unions, and States working together with insurers and investment houses will have to come up with programs or products to replace them. The Federal Government has no role in this, never did. States should come up with regulations on their medical and pharmaceutical industries encouraging competition for patient dollars, transparency in billing, open disclosure of costs prior to medical procedures to allow comparison shopping and more competition. These things are more easily accomplished on an individual state level than on a national level.  Again, the Federal Government is not good at much that it does, and its involvement usually leads to massive overhead costs, overregulation, poor rulemaking, and tremendous inefficiencies of delivery.

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Ronald Reason
Ronald Reason
1 month ago

There’s the definition of charity and then there’s the practice of charity, “the humanitarian giving without self interest.”  

Take welfare and food stamp recipients; these folks genuinely need help making ends meet in order to gain self-sufficiency. The Feds fund it; states manage it. Who’s at fault when programs like these are mismanaged or abused, at the state level? Who’s at fault when we elect lawmakers at the state level that run amuck at the federal level with “over-regulation and poor-rulemaking”.

Apparently, the Constitution DOES authorize the (right and left) Government to do many of the things it is doing today, as evidenced by the sheer number of House and Senate bills, resolutions, Supreme Court rulings, (Biden) executive orders and laws. 

“One thing is clear: The Founding Fathers never intended a nation where citizens would pay nearly half of everything they earn to the government.” ― Ron Paul

Pete Contostavlos
Pete Contostavlos
Reply to  Ronald Reason
1 month ago

Just because we have allowed the Federal government to do “many of the things it is doing today does not mean that it is Constitutional.” This nation has allowed this government to operate on automatic pilot since the start of the 20th century under Wilson. That does not mean that we should allow it to continue. Welfare and Food stamps in themselves are not illegal IF funded by and run by the States, but they are illegal if funded by the Federal government.

Ronald Reason
Ronald Reason
Reply to  Pete Contostavlos
1 month ago

It is well-documented that The Constitution can be broadly interpretated, i.e. Enumerated Powers. So, the accusations of “illegal” and “unconstitutional” are not really worth anyone’s time without a reference to the specific Law that is allegedly being broken, and maybe a case example. 

BTW, from the Texas (Welfare) Code:    
 
For Texas TANF Program, the federal law basis is:
(1) Title IV of the Social Security Act (42 U.S.C. §601 et seq.); and
(2) the federal regulations in 45 CFR, Parts 260 through 265.
 
For Texas SNAP, the federal law basis is:
 (1) 7 U.S.C. §2011 et seq.; and
 (2) the federal regulations in 7 CFR, Parts 271 through 283.
 
“Don’t Mess with Texas”, but Federal Law takes precedence.

Ronald Reason
Ronald Reason
1 month ago

I will say that the unconstitutional finger-pointing towards the Left is not helpful, at all. It’s also pretty far-fetched, considering:

  1. “…supreme Law of the Land…” – Article 6, Clause 2
  2. “…necessary and proper…” – Article 1, Section 8, Clause 18

Philosophy is common sense with big words. – James Madison