Enumerated Powers

The following is from my previous blog on Yahoo!360 and lists the powers that the Founding Fathers allocated to the federal government.  Everything else was for the States and the People:

I have often cited Article 1, Section 8 of the Constitution as listing the explicit duties of the Federal Government. The list is amazingly short since most functions were to be left to the States. There have been amendments that expanded the role of government (Income Tax, Votes for Women, Prohibition, etc.) but I'll leave those for a later discussion. For now, here - with some explanation - is the mentioned section:

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;

This grants taxing power to the Federal Government, a switch from the Articles of Confederation where such power was not granted. The "common Defense and general Welfare" refer to the remaining clauses and should not be taken as a wild card justification for government spending.

To borrow Money on the credit of the United States;

Yes, the Federal Government is authorized to borrow. The deficit is Constitutional.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Federal government was granted authority to regulate commerce among - though not within - the States. This has been expanded by crazy judges so that a farmer growing extra corn for personal use within one State was found guilty of breaking interstate commerce laws.

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Here we have immigration and bankruptcy, a strange combination.

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Yes, the government can print money and decide on exchange rates. It also allows for determining how heavy is a ounce, how far is a mile, etc.

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Here we have the clause that justifies the Secret Service.

To establish Post Offices and post Roads;

This justifies government built roads for the purpose of mail. I suspect the Interstate System rests on this brief clause.

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;

Here we have the authority for Patents and Copyright law.

To constitute Tribunals inferior to the supreme Court;

This allowed the Congress to establish the various circuit courts and Federal Courts.

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

The sea became the province of the Feds with the Constitution.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Somewhat archaic, this provides for privateers (Letters of Marque) and also sale of captured ships. Only the 'declare War' is really applicable today.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Military spending isn't unconstitutional? Who would have guessed?

To provide and maintain a Navy;

Yes, the Federal government is supposed to have a Navy, you crazy peaceniks.

To make Rules for the Government and Regulation of the land and naval Forces;

I suppose this provides for creating ranks, writing the Uniform Code of Military Justice, the Joint Chiefs of Staff, and all the other various things required for running a military.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Here we have the National Guard. Oddly, this seems to indicate that the Guard should only be used domestically.

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;

Ah, I spoke too soon on Clause 15. Here we allow wider latitude in use of the Militia (National Guard).

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 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

This provides for the District of Columbia. This also argues against DC Statehood. The Framers didn't want the capitol in a specific state since that would create a natural favoritism to that state by all members of government. It also provides for federal property in the states for federal buildings and forts.

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.

This is the catch-all clause though it is limited by the stated powers.

I'd like to point out that much of what the Federal Government now does is not listed within the limited powers above. It has far exceeded its authority, usurping power from the States and the people. The Founders wanted a 'limited' government.

The Framers wrote the Constitution so that the average person could understand it. It was not by mistake that Hammurabi's Code was posted publicly so that all could read it. The same was true of the Twelve Tables of Rome. When law gets too complicated for the people to understand, the people cease to rule and lawyers/judges take over.

The Democracy Bomb

In May/June issue of Mother Jones, Ari Berman opines that the Founders created a system that is now tearing the country apart.  His main issue is that the United States is not a true democracy and was never designed to be one.

The Senate: Throughout the article, Berman repeatedly comes back to the fact that the Senate is not an equally representative body.  That Wyoming with half a million people should have just as much say in the senate as California with nearly 40 million people is unacceptable.  However, this is exactly why the Senate exists.  If the Founders had wanted true democracy, there is no need for a bicameral legislature.  Before the Senate was crippled by the ill-considered 17th Amendment, it was intended to represent the state governments.  As Berman notes, it was the state legislature that appointed Senators and could recall them on a moment's notice.  This provided a check for the states to prevent the central government from imposing rules, regulations, and taxes that exceeded its authority.  As I noted in an earlier post, Obamacare could not have passed but for the repeal of the 17th Amendment.  Many other laws and taxes exist because the state governments no longer have a check on the Federal government.  Repealing the 17th Amendment would do wonders for shrinking the central government to a more reasonable size.

The Electoral College: Berman holds that the electoral college has allowed the candidate who did not win the popular vote to become president.  This has happened twice in fairly recent times (Bush 2000, Trump 2016).  Like many who opine against the electoral college, he misunderstands what it represents.  The Presidential election isn't one gigantic popularity vote, it is 50 separate weighted races.  California is vastly more important than Wyoming, but Wyoming isn't relegated to irrelevancy as Berman proposes to do.  A popular vote system would allow the populous states to oppress the more rural states.  In a pure popular vote system, Iowa and New Hampshire would be ignored while California, Texas, Florida, and New York would be flooded with presidential ads.  In a previous post, I gamed out a worst case scenario where the popular vote winner only wins 2 states.  The electoral college guards against this, among other disasters.

The Supreme Court: Because the court is nominated by the president and confirmed by the Senate, it is not a representative branch.  Well, of course not.  It is meant to represent the law, not the people.  Justice is supposed to wear a blindfold, but the writer is complaining that the court isn't representative enough.  It should not matter who the plaintiff is or who the defendant is, it should only matter what the law says.  If the law is unjust, that is a matter for the legislature to fix.  The writer complains that 'originalism' is an effort to protect white power.  Ugh.  If we are going to let judges change the rules on the fly, why bother with a legislature.  It is because some courts ditched original intent that the 14th Amendment (written in 1868) approved gay marriage.  Berman wants an activist court that implements 'democratic' policies.  That's the legislature's job.

What the Founders intended was that the States had sovereignty in most things but the Federal government would handle foreign affairs and any squabbles between the States.  It was meant to be a limited government that did just a limited set of things.  In fact, James Madison was even kind enough to list those things in the Constitution as enumerated powers.  If the government was limited to the actual enumerated powers, 70% of the current government would vanish overnight.  That is how out of hand things have become.

Berman accuses the Constitution of having been designed to protect white power, but then notes that most whites were initially barred from voting on account of the property requirement.  So, it wasn't to protect white power but propertied interests.  The writer has sought to make the founding document racist with the way he describes it.  Of course, that it upheld slavery and had the 3/5ths rule demonstrates racism but those were both expunged during and after the Civil War.  With the overtly racist parts already removed more than a century and a half ago, Berman needed to insert his white power nonsense to keep the race hustle alive.

What Berman wants is something more along the lines of a parliament.  In a parliamentary system, the executive and the legislative are mixed together.  The whole system is up for grabs and rapid change based on current trends is possible.  By contrast, the Constitution was designed to retard change and require sustained super majorities to alter the law.  It took decades for the Prohibition Movement to get the 18th Amendment passed, but marijuana was made illegal by the Controlled Substance Act of 1970.  Does the Constitution say anything about marijuana?  No.  Why didn't it require an amendment to prohibit?  Because we had dumped the enumerated powers by 1970.  The government isn't limited anymore, which is the way Mother Jones prefers it.

Democracy sounds good but it is a terrible form of government.  Inevitably, the citizens discover they can vote themselves money from the treasury and the system goes bust.  The US hasn't yet gone full democracy but the voting ourselves money has gone a long way: Social Security and Medicare are the big ones.  Rather than move further down the democracy path, maybe we should retreat back to the safe harbor of a Representative Republic.  That is the system the Founders designed.

We are now forming a republican government. Real liberty is never found in despotism or the extremes of democracy, but in moderate governments. - Alexander Hamilton

Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. - John Adams

Democracies have been found incompatible with personal security or the rights of property; and in general been as short in their lives as they have been violent in their death. - James Madison

A democracy cannot exist as a permanent form of government. It can only exist until a majority of voters discover that they can vote themselves largess out of the public treasury. - Alexander Tytler

Democracy is the road to socialism. - Karl Marx

The New 3/5ths Rule

Back in the 1780s when the Articles of Confederation were failing the newly independent United States, a constitutional convention was called.  The putative plan was merely to amend the Articles to deal with recent troubles.  Instead, a new constitution was composed.  One of the difficulties was that the southern states had sizable slave populations.  Slaves were property and thus, it was argued, shouldn't be counted in the population.  As representation in the House was going to be based on population, the South didn't like that plan.  Of course, the North didn't think slaves should get the same representation as citizens.  What to do?  The two sides agreed to the 3/5ths compromise.  Thus, a state with 50,000 citizens and 50,000 slaves would be allocated House seats as if the population was 80,000 people (100% of the citizens plus 60% of the slaves).  This compromise allowed the South to keep pace with the far more populace North for decades.  Though the 3/5ths rule is still written into the Constitution, the 13th Amendment - which abolished slavery - ended it.

Today, a new means of inflating representation in the House has been developed.  Though it would seem obvious that the purpose of the House of Representatives was to represent the interests of the citizens, such is not quite the case.  The huge influx of illegal aliens - or undocumented workers, if you prefer - has inflated some regions.  In 2018, it was estimated that 11 to 12 million "unauthorized immigrants" were in the United States.  That was about 3% of the population, or 14 seats in the House of Representatives.  Now, if this 3% was evenly spread across the US, the representation would be a wash.  But they are not evenly spread.  According to this 2019 story, most of them live in 20 metro areas.  By having a large illegal population, a state can gain a House seat or two.  Within the state, the balance of representatives will tilt toward the metro areas, disenfranchising the rural areas and smaller cities.  It should be noted that several million more illegals have immigrated into the US over the last 3 years.

Though there are financial costs to hosting illegal aliens, the political gains are clearly enough to have the majority of politicians turn a blind eye.  Illegal immigration is so unpopular with the citizenry that Donald Trump won the presidency in 2016 by campaigning on it.  He may win in 2024 by campaigning on it again!

Much as it was wrong to allocate representation to slave states through the 3/5ths rule, it is also wrong to grant sanctuary cities and states more representation because they flout US law.  Citizenship should have benefits.  If Dieter from Germany happens to be attending the University of Iowa, that does not mean that he should count toward Iowa's number of Representatives in the House.  Incentives matter and right now the incentive is to give more representation based on population rather than citizens; politicians are responding to those incentives by opening the borders.

Longest Serving Vice President

In 1805, George Clinton was inaugurated as Thomas Jefferson's 2nd Vice President; Aaron Burr had discredited himself.  Oddly enough, when Jefferson left office in 1809, George Clinton remained Vice President but now for James Madison.  In 1812, Clinton died in office and he was not replaced for the remainder of Madison's 1st term.  For 11 months, there was no VP.

In 1813, Elbridge Gerry - the man who gave his name to gerrymandering - became VP for Madison's 2nd term.  Gerry died in 1814 and was not replaced until the next election.  The vacant sign hung on the VP's door for 2 years and 4 months!

In 1825, John Calhoun became the 7th VP of the country to John Quincy Adams.  Like George Clinton, he stayed on as VP when Adams left office.  However, during the Nullification Crisis of 1832, Calhoun resigned his office.  The vacant sign was again hung on the VP's door, this time for only 3 months.

In 1841, William Henry Harrison offered an overlong inaugural address on a cold March day.  A month later, he became the first president to die in office.  Vice President John Tyler assumed the office.  This time, the vice presidency remained vacant for 3 years and 11 months.

In 1850, Zachary Taylor died of cholera.  Vice President Millard Filmore took his place and the vacancy sign was deployed yet again.  Two years and 8 months later, William King became VP.  He promptly died one month later.  The vacant sign took over for another 3 years and 11 months.

Just over a month after his 2nd inauguration, Abraham Lincoln was assassinated and Andrew Johnson was sworn in as president.  The vacant sign was nailed back on the VP door.

In 1875, Henry Wilson, who was Grant's 2nd VP, died in office.  The vacant sign was called back to service for another year and 4 months.

In 1881, President James Garfield was shot.  He lingered for a couple of months before dying in September.  VP Chester Arthur moved to the White House, leaving the vacant sign posted until the next election: 3 years and 6 months.  Thomas Hendricks took the vacant sign off the door in March 1881.  He died that November, and the vacant sign took charge again.

In 1899, Garret Hobart died of heart disease.  For the rest of the McKinley's 1st term, the vacant sign was posted.  Theodore Roosevelt took office in March of 1901, trusting the vacant sign would get a rest.  Such was not to be.  President McKinley was assassinated in September of that year and Roosevelt posted the vacant sign on his way to the White House.  Charles Fairbanks became VP in March 1905.

Just prior to the election of 1912, VP James Sherman died.  Sherman was the 7th, and so far last, VP to die in office.  The vacant sign had just over 4 months before Thomas Marshall was sworn in as Woodrow Wilson's Vice President.

In 1923, Warren Harding died in office.  Calvin Coolidge ascended to the presidency and the vacant sign once again adorned the VP's door.

In 1945, FDR died at the beginning of his unprecedented 4th term.  Harry Truman, who was FDR's 3rd VP, had only been a VP since January.  The vacant sign was once again called upon to serve as VP.  In 1949, when "Dewey beats Truman!", Alben Barkley was inaugurated as the new VP.

In 1963, JFK was assassinated and LBJ became President.  The vacant sign was once more called to service.

At this point, the vacant sign had served almost 38 years in the Office of the Vice Presidency.  The country decided something needed to be done.  The 25th Amendment was added to the Constitution, providing a means of filling vacancies.  Even so, the vacant sign was not quite retired.

In 1973, Spiro Agnew resigned and the vacant sign was dusted off.  However, only 2 months later, Gerald Ford was sworn in as Vice President.  Less than a year after that, Nixon resigned and the vacant sign was once again needed.  It was just over four months before Nelson Rockefeller took the vacant sign down and sent it in the National Archives.  Amazingly, it has not been needed in the last 50 years.

Knock on wood!

Schumer says Roe v. Wade isn't Federal Law

"Today, I'm announcing that next week the U.S. Senate is going to vote on legislation to codify a woman's right to seek an abortion into federal law."

Senator Charles Schumer

By this very statement, Schumer explains why Roe v. Wade should be overturned.  It was never legislated and yet is it law.  That is an oxymoron.  The courts are meant to interpret and apply the laws.  Sometimes when they do this, they overreach.  Roe is such a case.  The Congress did not legislate and yet a 'law' came into existence in 1973 through a court ruling.  This 'law' was created through a hundred-year-old amendment, which had not been viewed as saying anything on the topic.  Much as the Constitution is silent on murder, theft, burglary, assault, speed limits, building codes, or medical licensing, it is also silent on abortion.  These are all issues for states to legislate, provided they don't run afoul of the specific limits listed in the Constitution.  If Roe is overturned, abortion will face severe restrictions in some states and open support in others.  This would be very like how states treat gun rights, something that is specifically protected in the Constitution.

Let the Congress legislate, and face election based on the laws they pass.  That is how the system is supposed to work.  Too often, unelected judges and bureaucrats are making laws for which the people have no recourse.

"All legislative Powers herein granted shall be vested in a Congress of the United States"

Article 1, Section 1, US Constitution

All.  Not most.  Not the majority.  All.  If a citizen is compelled to obey, then it better have been passed by Congress and signed by the President.  If not, it's invalid.  Congress didn't legislate Roe.  It should be overturned.

Sedecim et Septemdecim Delenda Est!

Here is an article singing my song!  I've made this argument several times over the years, mostly for the 17th Amendment, but I whole-heartedly agree with repealing the 16th as well.  The Federal government is supposed to be a small, LIMITED government.  The states are STATES, not provinces.  It is a FEDERAL government, not a CENTRAL government.  Though I have long viewed the centralizing of power in Washington DC as a predictable result of changing the way senators are chosen, I did not tie the growth of the bureaucratic state to that amendment.  However, Kozlovich and Lehr make a good case for it.  With states unable to stem government overreach without their Senate veto, the growth of legislation and outsourcing the details to alphabet agencies does make sense.  Even so, the Constitution clearly states that 'All legislative Powers herein granted shall be vested in a Congress.'  That is clearly not the EPA, the FDA, the EEOC, or any of the other myriad agencies.  A rule that imposes penalties must be passed by members of Congress, not outsourced to unelected bureaucrats.  The Supreme Court got rolled by FDR's threat to pack the court and the floodgates were opened for more and more rules and regulations to flood from the unelected and largely unaccountable administrative state.

The 16th and 17th Amendments must be repealed!  In the aftermath, the central government will dwindle in size and power, and the states will regain some independence from an overbearing Washington DC.  As noted in a previous posting, Obamacare was opposed by 26 states and therefore could not have passed if the states still had control of the Senate as intended.  Much as I like the idea, it is a hard sell.  No path for accomplishing these feats is outlined.

The Draft

The draft (i.e. Selective Service) has been ruled unconstitutional in that it only applies to men.  Either both sexes need to be subject or the draft needs to be abolished.  I prefer option 2.  By its very nature, a draft is essentially slavery.  Either risk your life for meager wages or go to jail.  But some might say that a draft is necessary to save the country in times of war.  Any country that can't muster enough volunteers to risk life and limb to save it deserves to fall.  The draft hasn't been used since Vietnam and the US has managed to engage in plenty of wars with volunteers.  Here is the perfect opportunity to abolish it.  Rather than conscripting women too, end conscription altogether.

Treason Defined

Here is an article that explains what treason entails, offering 5 myths as a means of pinning down the definition.  To my surprise, one can only commit treason if the United States is at war.  Moreover, the traitor must either take up arms against the United States or provide aid to a nation that is taking up arms against the US.  That is news to me.  By that definition, Alger Hiss was not a traitor since we were not at war with the Soviet Union.  Julius and Ethel Rosenberg wouldn't be traitors either?  Then again, I suppose it depends on how one looks at the Cold War - we had a number of proxy wars with the Soviets over the years.  It is interesting to see how narrow the definition is and that the framers of the Constitution included the definition in the document:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

 

I've read this many times but always took a more expansive view of Enemies.  In any case, it would appear that the frequent accusations of treason were predicted by the Framers and they took measures to limit the scope of treason.  Just look at the French Revolution which was just getting into gear as the Constitution was ratified.  How many political opponents were guillotined as traitors?  Soon, disagreeing with the head of state becomes treason and the heads start rolling.

 

This is not to say that the current flurry of treason accusations don't have merit as other crimes, but they aren't treason under the US definition of the term.

Separation of Powers Blurred

All legislative Powers herein granted shall be vested in a Congress of the United States

Article 1, Section 1, US Constitution

Notice the All.  It doesn't say most or the majority.  It says All.  Many Senators and Representatives are less than keen on imposing unpopular provisions on We the People because We the People might vote against them.  Eventually, the elected set discovered a work around that would allow them to exercise ever greater power over We the People while not having to answer for imposing the laws that granted that additional power.  They adopted the parliamentary system of primary and secondary legislation.  The legislature would create a regulatory agency and imbue it with legislative powers.  Thus, the Environmental Protection Agency - which is part of the Executive Branch of government - can make laws (euphemistically called regulations).  With each new regulatory agency, the government dramatically expands its scope.  The 535 legislators could never produce the number of laws that scores of agencies churn out on a regular basis.  Moreover, once created, the agency can implement laws even when the Congress is gridlocked.  We the People may have voted for divided government to slow down law-making but that has little impact on these independent law-making executive agencies.  On this basis, it is clear that all regulatory agencies are unconstitutional.  Congress needs to pass laws and be subject to voter displeasure rather than hide behind bureaucrats who cannot be voted out of office.

 

The executive Power shall be vested in a President of the United States of America.

Article II, Section 1, Clause 1, US Constitution

 

The President executes the laws and administers the executive agencies.  He is the person responsible if those agencies aren't getting the job done.  However, thanks to various laws, he doesn't have the authority to do so.  For instance, the Veterans' Administration has been shown to be a disaster for veterans, unable to provide healthcare in a timely manner.  The President cannot clean house because Civil Service Reform has taken 98% of federal jobs out of his ability to fire.  If the CEO cannot fire an employee, that employee can safely ignore the CEO.  On that basis, Civil Service Reform is unconstitutional.  The President runs the executive branch, which includes hiring and firing.  The lethargic bureaucracy will become quick and nimble overnight if the president could dismiss foot draggers.

 

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III, Section 1, US Constitution

 

Though the judicial power resides in the Supreme Court, the Congress has considerable authority on its size.  If Congress so desired, it could eliminate all the Federal Courts in the US and abolish all but one justice on the Supreme Court.  The courts have judicial power and yet have, from time to time, offered rulings that are indistinguishable from legislation.  Worse, some of these rulings are essentially beyond the power of the actual legislature to amend or repeal.  The court should limit itself to interpreting the laws.  If it must legislate, it should limit that to negative legislation, merely striking down laws that do not conform to the Constitution rather than positive legislation that implements their policy preferences.  Clearly, when the court has a ruling that is in opposition to the continually voiced desires of We the People, one must ask where US Sovereignty really resides: with the people or with 5 members of the Supreme Court?

 

The blurring of the lines between the three branches is a big part of why the government has become so bloated and unresponsive to We the People.  If the branches remained within the bounds of the Constitution, the government would be dramatically smaller, less expensive, and vastly more efficient.  There is far too much government for us to claim to have limited government.

Too Many Laws

A quick online search reveals that an exact count of Federal Crimes is unknown.  There is the distinction between laws and the various regulations that inevitably sprout from those laws.  One estimate from 2015 stated that there were "at least 5,000 federal criminal laws, with 10,000-300,000 regulations."  It is the responsibility of the executive branch to enforce all these laws  However, as we have seen, there is a lot of wiggle room.  Obama opted to overlook immigration laws even while he enacted new laws like the Affordable Car Act and Dodd-Frank Act.  Even with the vast resources of the US government, only so much can be accomplished.  Thanks to this vast sea of laws, executive discretion has more impact than Congressional legislation.  Immigration law appears to flipped on a dime in the wake of Trump's inauguration but it is just that he has chosen to enforce laws that Obama put on the back burner.  Moreover, Trump has already put Obama's emphasis on Climate Change on the back burner.  One country, one set of laws, two dramatically different outcomes based on who occupies the White House.  To prevent these swings, we need to rollback the scope of the Federal Government.

 

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.

10th Amendment of Constitution

 

The Constitution grants no authority over education: Abolish Department of Education.

 

The Constitution grants no authority over healthcare: Abolish Department of Health and Human Services.

 

The Constitution grants no authority over farming: Abolish Department of Agriculture.

 

The Constitution grants no authority over labor: Abolish Department of Labor.

 

The Constitution grants no authority over housing: Abolish Department of Housing and Urban Development.

 

The Constitution grants no authority over energy: Abolish the Department of Energy.

 

All of these departments were power grabs by the central government.  Homeland Security is the latest new department but at least there is authority granted in the Constitution for national defense.  Even so, we should abolish this one too.  Return it all to the states or the people and, if there is an actual need, they are more than capable of resolving it on the more local level.

 

Paring back the scope of government would dramatically limit the discretion of the executive.  Thus, a change in the head of state would have far less impact than it does today.

 

Based on 2009 numbers, the abolition of the above departments would result in $1.3 trillion in in savings and a reduction in the federal workforce of 560,000 people.  Let's see, divide 1.3 trillion by 330 million and you get $3,940 per person in the US.  Of course, the budget has gone way up since then so the dividend would be even bigger.

Too Much at Stake in Modern Elections

Here is an excellent article by Glenn Reynolds:

Elections matter too much

Yes, precisely.  Too much of how the country is going to be rides on elections.  Everything has become political.  Mussolini wanted everything to be within the state, nothing outside the state.  The continued expansion and centralization of government is leading in that direction and both sides panic at the ascendance of the other.  That the panic is not irrational should demonstrate to all that the government has too much power, too much reach.

Last year, Texas Governor Abbot proposed a Constitutional Convention to consider some new amendments.  Many of his amendments reiterated the existing limits already in the Constitution and failing to limit.  I remain skeptical of the plan but it is a little used Constitutional provision that the States can use.  Perhaps an amendment that said, "We were serious about the 10th Amendment" would get the President, Congress, and Supreme Court to limit themselves to the powers actually enumerated in the Constitution.  Maybe we should just have a reboot of the operating system; it works surprising well for computers, maybe it can work for government.

Repeal and DON'T Replace

I keep seeing these articles about how the Congress should repeal and replace the Affordable Care Act.  Though I favor the repeal, I don't see any need to replace.  Let free people figure out a solution to their problems, don't let government impose a solution.  When we look at areas that have seen the most involvement by government (e.g. healthcare or education), we see prices rising faster than inflation for decades.  However, in areas where government is less involved or practically absent (e.g. internet, computers, digital cameras), prices have plummeted.  This is not a coincidence.

 

Health insurance is not insurance.  Insurance is meant to offset risk.  Home insurance is not meant to provide a new paint job every few years or pay for new bulbs in light fixtures, or reimburse for the plumber unclogging the sink.  It is there to cover large but also unlikely expenses, such as the roof being torn off by a tornado or a fire.  Likewise, car insurance doesn't cover oil changes, gasoline, or new windshield wipers.  Car insurance is for rare events like a crash that causes thousands of dollars in damage.  However, with health 'insurance,' it is expected to cover annual physicals, flu shots, and virtually every visit to a medical professional.  It isn't paying for unexpected costs but rather it is covering all costs.  Health insurance needs to turn back into insurance.  Insurance would cover something like cancer or being hit by a bus but not expected and routine expenses.  That change would dramatically reduce 1) the cost of health insurance and 2) the price of health care.

 

Prices will adjust to the ability of people to afford.   Part of the price reduction will come from the efficiency of first party payer.  If the doctor doesn't need a billing department to contact insurance companies to secure payment, that cost can be eliminated and the price of all procedures drops.  The insurance companies will likewise shrink on account of vastly fewer claims.  With the current system, the patient is only concerned with the co-pay and any expenses that might accrue directly to them.  There is no point in haggling to get a better deal.  First party payer will end the $30 aspirin and other over-inflated charges.  This free market approach will be bumpy but no worse than Obamacare has been and far more beneficial.

 

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.

10th Amendment

 

Health care is a power that was not delegated to the United States by the Constitution.  As such, it needs to return to the States or to the people.  Of course, government doesn't like surrendering tax dollars or regulatory power, so I doubt the free market will get the contract.  The replacement may be less odious, but will still be beyond the legal authority of the federal government.

Pot: Making the Poor Poorer?

Here is a story that makes one reconsider some views.  Interestingly, I have changed my views on this subject before.  Back in the early 90s, I was opposed to the talk of legalization because the Republican Party was opposed.  There were some arguments about it being a gateway drug that sounded quite reasonable to me.  However, early in George W. Bush's presidency, I left the Republican Party.  The smaller, less-intrusive government I had expected if ever the Republicans held the House, Senate, and Presidency did not appear.  In fact, the reverse was true with a Medicare Drug benefit and a Department of Homeland Security.  It was at this point I encountered a talk radio host - Brian Wilson, I think - with strong libertarian leanings.  He pointed out that in order for the Federal Government to control alcohol, the Constitution had to be amended.  Where was the amendment for marijuana?  Cocaine?  Heroin?  He was not promoting drug use, merely demanding that the government stay within the bounds of the Constitution.  To expand those bounds requires an amendment.  Wow, that was powerful and really kind of obvious.  In fact, it was so obvious that I had to do more rethinking of my political beliefs.  After that, I was not so much for legalization as for federal decriminalization, which still has not happened.  However, the Feds have mostly ignored marijuana crimes in states that legalized it.  In the aftermath of multi-state legalization, we have some data, which is not good.  Marijuana legalization has had a disproportionate impact on the poorest citizens, increasing the likelihood that they will not escape poverty.  Is this evidence that marijuana should be recriminalized?  Perhaps.  However, I am still in favor of national decriminalization because the Constitution does not provide authority - except under the crazy interpretation of the commerce clause - to outlaw substances.  If the commerce clause wasn't good enough to use to outlaw alcohol then it isn't good enough to outlaw anything else.  Amend the Constitution or leave it to the states.  In a few more years, the data from the several states will give a much better indication of the costs and benefits of legalization.  Other states can continue to have pot illegal or not.  If states can decide on things like gambling and prostitution, why not pot?

 

People have a right to ruin their lives, just not at taxpayer expense.  Don't smoke pot.

Consent

He shall have Power, by and with the Advice and Consent of the Senate... shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,...

US Constitution, Article 2, Section 2

 

This details the president's authority to appoint justices to the Supreme Court.  Note that it is limited by the Advice and Consent of the Senate.  The Senate is not required to act expeditiously, schedule hearings, or play nice.  The Senate can refuse to confirm every single appointment from day one; their consent is not mandatory or it wouldn't be consent.  This is one of those checks we hear about in our checks & balances government.  The Senate is well within its authority.  As for the Democrats, they have no cause for complaint.  When the shoe was on the other foot, they imposed the nuclear option to bypass the minority party entirely on judicial nominations.  They rammed through, on a party line vote, the House version of the Affordable Care Act in the days before Scott Brown became the 41st Republican vote in the Senate, thus allowing zero input from the minority.  You reap what you sow.

 

There is currently an argument that Republicans want the people to decide the next Supreme Court Justice via their vote in November.  Democrats have countered that the people made that decision in 2012 when they reelected President Obama.  Of course, the people elected a Republican Senate in 2014.  Wouldn't that mean the people voted to obstruct the president more recently than they voted to support him?  In any case, the President is entirely within his rights to nominate a judge for the Supreme Court and the Senate is entirely within its rights to refuse consent.  Checks & Balances.

 

Of course, the Republicans are spineless and will likely collapse before the month is out.  That spinelessness, that lack of principals is why the Republican base is willing to roll the dice on Trump.  There will probably be hearings but will enough linguini-spined Republicans vote in favor of Obama's nominee to get 50 votes?  How many Jim Jeffords and Arlen Specters are still hiding in the Senate?  Considering the track record, I would give Obama even odds that his nominee is confirmed.

Amending the Constitution

Greg Abbott, Governor of Texas, has proposed a bunch of new amendments to the Constitution.  I found a list of them here.  There are some good ideas.  However, most of his proposed amendments seek to return power to the states.  The states lost their say at the national level when the 17th Amendment was ratified, making Senator an elective office by the people of the state rather than an appointed position by the state assembly and/or governor.  As I have pointed out in a previous post, 26 states opposed Obamacare.  If those states could have simply ordered their senators to vote against - which is what would have happened before the 17th Amendment - the law would not have been passed.  Senators went from protecting the authority of the states they represented to accumulating power in the governmental body where they served.  This is one of the reasons money and power have migrated from the states and to Washington DC.

 

It would be far more efficient to just repeal the 17th Amendment.  Sadly, this is an abstruse argument that can easily be flipped as taking voting rights away from the people.  "What do you mean I no longer get to elect my senators?!"  For that reason, this simple solution would be a much harder sell.  It was comparatively easy to repeal Prohibition (18th Amendment) because everyone needed a drink.  With that sadly being the case, let's look at the proposals.

Prohibit Congress from regulating activity that occurs wholly within one State.
 

But for an expansive definition of the commerce clause, this would already be the case.  The Supreme Court ruled that a farmer who had grown a crop entirely for his personal use was taking part in interstate commerce and thus subject to federal law.  Ergo, everything becomes a facet of interstate commerce and under the purview of Congress. 

Require Congress to balance its budget.

That would be nice but I suspect that Congress would use this as an excuse to raise taxes rather than cut spending.  "Hey, you people ratified the amendment that requires us to balance the budget.  It's your fault that we must raise your taxes."  I like what Colorado did.  They limited the growth of state spending to inflation and population growth.  Do that at the federal level and we would be running surpluses in no time.

Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law.

That this should even have to be proposed tells just how far we have drifted.  The Constitution grants legislative power solely to Congress.  Every single law, regulation, expenditure, et al. must be passed on the floor of the House and Senate.  They can no more transfer this power to non-elective agencies than the president can give his veto to Mickey Mouse.  Yet they have.  So be it, we will have to try an amendment.

Prohibit administrative agencies — and the unelected bureaucrats that staff them — from preempting state law.
 

This looks like it should just be a clause under that last one.  If Congress can't export its legislative features to unelected bureaucrats, it should be able to imbue them with judicial powers either.  Let's not blur the lines between judges and bureaucrats.

Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

I'm ambivalent on this one.  I'm not keen on the Supreme Court lacking a check or balance.  In theory, a misbehaving judge can be impeached by Congress but that is virtually impossible.  Congress likes transferring risky decisions to non-elective parts of government - thus those last two proposals - and the court is the ultimate non-elective part.  Each party seeks to control the court and have its agenda imposed on the country by means of unredressable rulings.  This provides a more realistic means of checking the Supreme Court.  However, I suspect there are some unforeseen problems hidden in this.

Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

 

I don't see how this would fly.  First, it would have to apply to all federal courts or this would mostly transfer final decisions to the various Federal Appeals Courts.  How far down would this super-majority requirement go?  Besides, if the two-thirds override discussed in the last proposal came to pass, there is redress rather than hobbling the court system.

 

Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
 

How do we do that?  The Constitution already limits the federal government to certain delegated powers.  Check out the 10th Amendment.  It is already unconstitutional and yet it is done.  Do we make it double-dog dare unconstitutional?  Wouldn't it be best to just enforce the laws (amendments) already on the books than enact new ones that duplicate the old ones?

 

Give state officials the power to sue in federal court when federal officials overstep their bounds.

 

This one is full of mischief.  In a litigious society such as ours, this is an invitation to civil war fought in federal courts.  The very federal courts that have been hamstrung by some of the above proposals.

Allow a two-thirds majority of the States to override a federal law or regulation.

 

The likelihood of this actually being exercised is so low that it is probably a good idea.  The populace would have to be hugely indignant for the states to achieve this.  It is short of an amendment (3/4ths required) and echoes the presidential veto.  If this were to be successfully used, it would be an indication that the federal government had become tyrannical and this might be a means of preventing civil war or secession.

 

That a governor of one of the largest states thinks this is necessary is a bad sign for the republic.  Too much of this tries to force the federal government back within the constraints that are already in place in the Constitution.  Those constraints have failed.  Reiterating them is unlikely to succeed.

The Uninformed Electorate

"Wherever the people are well informed they can be trusted with their own government."

Thomas Jefferson

I stumbled upon the following story today.  It is not the first of its kind nor, sadly, will it be the last.

http://www.latimes.com/science/sciencenow/la-sci-sn-science-quiz-americans-pew-20150909-story.html

Here is yet more evidence that the American Electorate is not well informed.  It is no wonder that so many accept Global Warming/Climate Change.  Lacking any foundation upon which to judge claims, it quickly becomes impossible to make informed decisions.  Last year, I posted a link to a YouTube video in which college students were quizzed about American government and politics; the results were disastrous.

When Davy Crockett returned to his district in Tennessee after a term in Congress, he had a farmer demanding for him to explain some of his votes and where the Constitution gave him the right to provide charity from the treasury.  Here was an informed voter.  Elected officials do not like informed voters because informed voters can hold them to account.  On the other hand, uninformed voters will numbly nod to whatever a politician says:

"There’s one issue that will define the contours of this century more dramatically than any other, and that is the urgent and growing threat of a changing climate."

Barack Obama, Sept 23, 2014

Plenty of skepticism has been published here regarding the Climate Change Hoax.  It is a government power grab to get more taxpayer dollars and further limit freedom through 'common sense regulations.'

It is not by accident that our public education system is producing an uninformed electorate.  That is its purpose.  To whatever degree students are informed, it is indoctrination in favor of larger and more intrusive government.  An armed (2nd Amendment) and informed (1st Amendment Freedom of the Press) electorate was meant to prevent the growth of over-reaching government.

"The natural progress of things is for liberty to yield and government to gain ground."

Thomas Jefferson

In the long game, it looks like the government is winning, just as Jefferson predicted.

End of Constitutional Government?

With both the Obamacare and the Arizona rulings, the Supreme Court has demonstrated its bias toward the central government against the states and the people.  The Tenth Amendment is meaningless to at least 5 members of the court.  The idea of limited government is likewise a forgotten aspect of the Constitution to a majority.

In the wake of the Declaration of Independence in 1776, the Continental Congress set to establishing a national government.  However, the Congress and the States had such fear of a powerful central government that they created a weak, virtually toothless one under the Articles of Confederation.  The Articles provided no power to tax so the central government could only request money from the several states.  Sadly, the Articles proved insufficient for the needs of the new country.  Shays’ Rebellion demonstrated a need for a somewhat stronger though still limited federal government.  A convention had already been called to do just that.  Though initially intended to merely amend the Articles, the convention drafted a new Constitution.   This proved to be controversial with the likes of Patrick “Give me Liberty or Give me Death” Henry, Samuel Adams, and future President James Monroe arguing against stronger central government.  The Anti-Federalists demanded assurances that the government would be limited and provided for the Bill of Rights.

This brief history lesson should more than demonstrate the Framers intent to have a limited and constrained Federal Government.  It had powers enumerated within the Constitution (Article 1, Section 8) and the Bill of Rights was added just to emphasize the limits of government.  The Constitution is a document that is distrustful of government.

So, how is it that Constitutional scholars with decades of law experience are utterly unaware of this?  It is not that they are unaware but they know where their bread is buttered.  The Supreme Court is at the Federal level.  If they hewed to the Constitution, the federal government would be forced to shrink dramatically and thus the Court’s purview would likewise shrink.  Few people voluntarily surrender power, which is why George Washington is so great.  John Roberts has tasted power and likes it.  He has been corrupted.

The Congress passed a law that was clearly unconstitutional.  It isn’t the first time and it won’t be the last.  The President signed that unconstitutional law.  Again, not the first time nor the last.  And, the Supreme Court has confirmed its constitutionality.  The final arbiter, We the People, will decide the issue through elections or let it slide.  If we let it slide, limited government is over, a government of laws not men becomes a memory.

The Tenth Amendment

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.

And there you have the 10th Amendment.  Does it have meaning anymore?  The very statement of the amendment presupposes that the Congress has been delegated powers that are enumerated within the Constitution.  Anything not enumerated is to be left to the States and the people.  It is a very simple amendment that speaks volumes.  Like the 2nd Amendment, it is loathed by those who seek to empower the central government.  Health care, retirement savings, education, and countless other aspects of life are nowhere listed in the Constitution and yet, despite the clear limit set by the 10th Amendment, government has seized control to varying degrees in all of these areas.

I have found myself asking those who favor Obamacare to explain what limit there is on government if it can do this?  Can it tax people who don't have gym memberships with the goal of addressing the obesity problem?  The reply is generally a roll of the eyes, as if my question is foolish.  Obviously, government isn't going to tax us if we don't get gym memberships.  How do you know?  What limits it from doing just that?  The 10th is a bright red line of a limit and it was breached more than a century ago.  Like the human appendix, it is a vestigial part of the Constitution that no longer has a function.  However, it was never repealed and could resume its purpose to limit the government.

The Founders had intended for We the People to be the final arbiters of Constitutionality.  They provided that we could vote the bums out and, failing that, also provided that we had guns to establish new government just as they had.

Respecting the Constitution

This is a reprint from my old blog, first posted 6 years ago.

In the 19th Century, the Temperance Movement gained considerable steam and worked its way through America.  The goal was to end the evils of drunkenness by banning alcohol.  After more than a century of effort, the various Temperance groups achieved great successes in towns, cities, counties, and even states but there was still work to be done.  It was time to go national.  However, there was a problem.  The Constitution offered no authority for the Federal government to outlaw or restrict alcohol; that was a state-issue.

The Temperance folks were not to be denied.  There was a way around that pesky problem and it was provided by Article V of the Constitution.  They could amend the Constitution.  The 18th Amendment was proposed in the summer of 1917 and ratified less than 2 years later.  Starting in 1919, the US government had the authority to restrict alcohol and Prohibition commenced.  Though alcohol consumption in the US was dramatically reduced (by roughly two-thirds if I recall correctly), the resulting crime of bootleggers – especially violence like the St. Valentine’s Day massacre – was viewed as an unacceptable price.  Thus, the 21st Amendment was ratified and the alcohol flowed again in 1933.

You might ask, "What's your point, Dave?"  The point is that in order for the Federal government to outlaw a substance - alcohol - it was necessary to amend the Constitution.  This all happened in the days prior to rampant judicial activism so the Constitution wasn't a "Living Document" yet.  So, my question is this: on what basis does the Federal government outlaw any other substance?  I find no amendments granting the Federal government the authority to ban marijuana, cocaine, or anything else.  Where did they get this new found power that required an amendment for alcohol?

The purpose of the Constitution was to limit the authority of the Federal government.  The Founders had experience with an overbearing monarch and didn't want a repeat performance.  They wrote the Constitution to give the Federal government a limited role, mostly with regard to foreign policy and interaction among the states.  In our era, we have forgotten this.  Government has stuck its fingers in pies where it has no Constitutional authority to do so.  However, since most people are ignorant of the Constitution, there are few who seek to hold government to account.

From my reading of the Constitution, I can find no authority for Social Security, Medicare, Education, Drugs, Media (e.g. NPR, PBS), et al.  Whenever I make this point, it is inevitable that the ‘General Welfare’ clause is cited as a catchall.  Well, let's see what James Madison, Father of the Constitution, thought of General Welfare: 

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. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.

It appears that James Madison is on my side of this argument.  The Temperance Movement respected the Constitution and made the effort to amend the document.  Now, we no longer respect the document and just amend it on the fly through judicial rulings.  It is clear that we have drifted from the belief that the Constitution was meant to limit government.  Today, the government does many things that the Framers never intended and the document doesn't condone except when read by activist judges and elected officials who neglect their oath to uphold the Constitution.

Trust SCOTUS?

So, Obamacare took a beating in the Supreme Court today. The mandate was battered even by liberals on the court. The odds now state that it is 55% likely the court rules the mandate unconstitutional. That does not comfort me. The Supreme Court has a history of failing to uphold the Constitution. The Kelo decision (2005) turned the 5th Amendment on its head, where it remains. The court upheld McCain-Feingold though it has corrected that with its Citizens' United ruling.

The notion that buying health insurance from an insurance company that is barred from selling insurance across state lines falls under the congressional power to regulate interstate commerce is silly on its face. If congress can require individuals to buy health insurance, what can they not force you to buy? Where is the line? One would think that advocates for Obamacare would have had an answer for that ready. Nope. One justice asked about requiring people to buy cell phones and the defense said that wasn't the same but couldn't explain why. Cuz. Oh, the 'Cuz' argument. Lovely.

If the court upholds the mandate, there will be no going back short of amending the Constitution. Once it has been determined that government can require citizens to buy something, there will be no end of things to buy.