Monday, November 30, 2009
In reality, though, Reagan's biggest mistake was, in his attempt to make things right, to trust people who didn't deserve to be trusted.
Saturday, November 28, 2009
Beck can be very uncivil. But he speaks the truth. Is that enough reason to keep paying attention to him?
Tuesday, November 24, 2009
Saturday, November 21, 2009
This reality requires us to defend the "limited" view of General Welfare powers not just as a matter of Constitutional principle, because those who make the opposing case do so using the same Constitution and the words of other Founding Fathers. Those who make the opposite case see our "principle" as mere dogmatism. Our case is made much stronger, then, if we can defend the limited view of the General Welfare Clause from a pragmatic perspective. In other words, many more people will rally to our cause if we can show that our perspective makes sense. Never fear, however--that is becoming increasingly easy to do.
Sunday, November 15, 2009
They were very dissimilar. Ronald Reagan was an imperfect statesman. George W. Bush was a political freak.
Tuesday, November 10, 2009
In the Fall of 1959, U.S. Secretary of Agriculture Ezra Taft Benson, along with family and staff members, toured the Soviet Union. From the moment he arrived, Secretary Benson requested to be able to visit any Christian church in Moscow, all the while fearing that his KGB handlers would never allow such a thing to happen.
Monday, November 09, 2009
The Declaration of Independence and the Constitution of the United States both satisfy the predicates of Natural Law. Natural law realizes its limits and stops there. The current United States government doesn't. Natural law finds its equivalent in our founding documents. Our current national government is natural law's antithesis.
Sunday, November 08, 2009
But how will it be saved? Through provident living and civility.
Friday, November 06, 2009
Up until tonight, I had thought that the North American Free Trade Agreement was really a treaty, but that the acronym NAFTT just didn't have quite the right ring to it. The reality, however, is that NAFTA is a mere "agreement", which doesn't have the force of Constitutional validity. The 61 votes that NAFTA received in 1993 did not constitute enough votes for it to become a "treaty".
Article VI of the Constitution says that
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...The Constitution carefully describes what constitutes a treaty. In describing the authorities of the President, Article II states that
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;If two thirds of our 100 Senators do not concur, then it does not become a treaty. If it fails to become a treaty, then the agreement with foreign nations cannot be binding on the United States or any of the separate states of the Union.
Further confusing the issue is the treaty called the General Agreement on Tariffs and Trade. I am unsure of how the voting went when GATT was first instituted in 1947, but, if it hadn't done so before, in 1994 GATT did take on the full force of treaty due to a 76-24 vote in the U.S. Senate. Yet it is still referred to as an "agreement". C'mon--GT3 (General Treaty on Tariffs and Trade) sounds at least as cool as GATT!!
Michael I. Meyerson points out in his book Liberty's Blueprint, that
The treaty provision--with its requirement of approval by two-thirds of the Senate--was meant to be the exclusive means for making binding agreements between the United States and other nations. In the past seventy-five years, however, presidents have taken to using agreements rather than treaties to make binding commitments with other nations.In the 2003 case "American Insurance Association v. Garamendi", the Supreme Court, by a bare majority, incorrectly decided that an "agreement" signed by President Bill Clinton and German Chancellor Gerhard Schroeder could supersede California's Holocaust Victim Insurance Relief Act, even though Clinton's "handshake" with Schroeder was never even presented to Congress for ratification, let alone voted on.
Why is it that, since 1960, approximately 95% of pacts with foreign nations have been formalized by "agreement" rather than treaty? Because it's much easier. Unfortunately, though, the fact that treaties are mentioned in the Constitution while "agreements" are not makes it clear that one method can be used for forming alliances with foreign governments, while the other method cannot be used, regardless of how much easier it might be.
Interestingly, due to the fact that members of the House of Representatives were to be (and still are) elected by the people at large, the House was purposefully excluded from participation in the treaty-making power. It's all the more ironic then, that--to give modern-day "agreements" a flavor of Constitutionality which they do not deserve--the House of Representatives is almost always included in the voting on agreements that have the good fortune of ever making it to the Congress.
Until the unfortunate advent of the 17th Amendment to the Constitution, Senators were appointed by the Legislatures of the States in which they resided. The two-thirds requirement of treaty-making power implied essentially, then, that two-thirds of all the states were in agreement with the president that a treaty should take effect.
So, what's the big deal, you say? After all, currently, agreements are decided by a majority (more than 50%) vote of both houses of Congress. The big deal is that 67 is 34% more than 50. John Jay, one of the authors of the Federalist Papers, wrote
Who can think it probable that the president and two thirds of the senate will ever be capable of such unworthy conduct [of making a treaty that is not of general benefit to the United States]?On the other hand, is it probable to think that the president, with only 51 members of the Senate--or the President all by him/herself--could be capable of such unworthy conduct?
It's much more probable. Look around you. It's beginning to happen all the time.
Monday, November 02, 2009
Just two days before Hamilton was killed in a duel with Aaron Burr, he revealed who had written each of the Federalist Paper essays. That day, Hamilton appeared at the law offices of his friend, Egbert Benson. Egbert was away on business, but under the watchful eye of Benson's nephew, Robert, Hamilton strode to the book case, removed a book from the bookcase, placed something in it, and placed the book back on the shelf.
Shortly after Hamilton's death, Robert examined the same book and found [a] sheet of paper inserted between its pages. On this paper, Hamilton had written "Nos. 2, 3, 4, 5, 54 by J[ay]. Nos. 10, 14, 37 to 48 inclusive, M[adison]. Nos 18, 19, 20, M. & H[amilton] jointly. All others by H."In 1818, James Madison gave his account of who had written each Federalist essay. His tally was slightly different than Hamilton's. Their accounts did not, however, differ as to who had written essays #17 and #34. Historians agree that both of these essays were written by Hamilton.
Liberty's Blueprint, Michael I. Meyerson, p. 4
On December 5, 1787, Federalist #17 was published in the New York Independent Journal. Therein, Hamilton wrote that:
The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.Exactly one month later, the Journal published Hamilton's Essay #34. Hamilton wrote
The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.Four years after that, in his Report on Manufactures, Hamilton might have appeared to be advocating a position diametrically opposed to his stance of late 1787 and early 1788.
...there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.Was that a flip-flop? Maybe, but more than likely it was not. In one instance (Federalist essays #17 and #34), Hamilton discussed the inability of the federal government to govern in areas of a general nature, while in the second case (Report on Manufactures) he dealt with his perspective on that same government's ability to fund such pursuits.
James Madison fervently maintained the position, as he wrote in Federalist #45, that
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.Contrarily, it appears, Hamilton agreed with Madison in regards to the limitations on federal government's power, but they seemed to disagree on its involvement in funding such activities (and that assumed disagreement may not even be true). To clarify the difference between the governing versus the funding, Hamilton concluded his Report on Manufactures with this:
That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.In other words, Hamilton says, don't object to the funding part of it by improperly inferring that I think the federal government can legislate on anything it might deem to be in the general welfare. Or--more simply--just because you can fund it doesn't mean you can legislate it. Maybe Madison and Hamilton were more in agreement about the General Welfare Clause of the Constitution than has been generally thought.
No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.
Regardless of whether the Founders disagreed on the "general ability" of the federal government to legislate as regards the General Welfare, it seems easy to intuit that the Founders, were they alive today, would be unanimous in bemoaning that a great deal of what the federal government funds today is of a very un-general nature, and is therefore unconstitutional.
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Other Articles in this Series
- General Welfare Clause: The Constitution's Great Limitation
- General Welfare Clause: Without Limited Federal Powers, the Constitution Would Likely Never Have Been Ratified
- How the Next American Generation Destroyed the General Welfare Clause
Sunday, November 01, 2009
General Welfare Clause: Without Limited Federal Powers, the Constitution Would Likely Never Have Been Ratified
Virginia, Massachusetts, and New York, some of the largest states in America at the time of the state constitutional ratifying conventions, came rather close to not ratifying the Constitution. They wanted assurances that the General Welfare Clause, as written, did not mean that the new federal government could raise moneys through taxation for essentially anything that the government happened at the time to deem as being for the general welfare.
These states were among those which asked for a Bill of Rights, which would ensure, among other things, that the states would still be able to perform the duties that were not expressly granted to the federal government by the Constitution.
In his book Age of Strict Construction: A History of the Growth of Federal Power, author Peter Zavodnyik wrote
The idea that the [general welfare] clause bestowed so broad an authority would have come as a shock to most delegates. They had just spent six weeks debating the enumerated powers of Congress...The idea that the federal government should be limited by the enumerated list of duties in the General Welfare Clause, although fearfully unclear to many who opposed it, was the intention of the bulk of the founders. For example, James Wilson, in what became known as the Stateyard Speech, spoken on October 6, 1787, said
...the convention [had already] considered and rejected a broad spending power on August 25... Federalists responded to concerns over the general welfare clause and the rest of the Constitution with the assurance that Congress could exercise only those powers granted to it.
Age of Strict Construction, pages 20-21
it is evident, that in the former case [state legislatures] everything which is not reserved is given, but in the latter [Congress] the reverse of the proposition prevails, and every thing which is not given is reserved."Others of the Founders felt the same way. Delegates Rufus King and Nathaniel Gorham championed the idea of limited federal powers. Roger Sherman asserted that the federal government's powers were "particularly defined," and that, therefore, each state kept to itself the "right to exercise every power of a sovereign state not delegated to the United States."
Their fears still not completely assuaged, the states of New York, Massachusetts, and Virginia (among others) proposed various amendments to the Constitution, many of which were later included in the Bill of Rights. Once they were confident that their concerns would be aired on the national stage, their conventions ratified the Constitution as it stood.
Although the Bill of Rights was ratified nearly two years after--and added to--the Constitution, work on incorporating such amendments into the Constitution followed close on the heels of the Constitution's ratification. The fledgling government knew full well that without various amendments, the danger of a second constitutional convention was immediate, which would cause the government to fail. George Washington, writing to Charles Carter, feared that
...there is no Alternative between the Adoption of it and Anarchy. General government is now suspended by a thread.The first such amendment proposed by the state of Virgnia said:
That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.In essay #39 of the Federalist Papers, which went very far toward the convincing of the New York state convention to ratify the Constitution, James Madison wrote:
the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.Phrasing similar to this, and even more similar to the Virginia amendment discussed above, made it into the Bill of Rights. The 10th Amendment to the Constitution makes it even more clear that the States retain far more rights to govern than those ceded to 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.Some claim that George Washington supported a much less limited understanding of the Constitution's general welfare clause. Washington, in his last public appearance as president spoke of the importance of fostering agriculture.
It will not be doubted, that with reference either to individual, or National Welfare, Agriculture is of primary importance. Institutions for promoting it, grow up, supported by the public purse: and to what object can it be dedicated with greater propriety? Among the means which have been employed to this end, none have been attended with greater success than the establishment of Boards, composed of proper characters, charged with collecting and diffusing information, and enabled by premiums, and small pecuniary aids, to encourage and assist a spirit of discovery and improvement.It is far from clear, however, whether Washington was advocating direct spending by the federal government on behalf of farmers. More likely, it appears that Washington was praising what local "Boards" had already aided farmers with "premiums, and small pecuniary aids". In fact, Alexander Hamilton, who was Washington's Treasury Secretary at that time, had previously written in Federalist Papers essay #17 that
The administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.Various presidents of the United States have vetoed legislation that violated the common understanding that the federal government's powers were severely limited vis a vis the states. When a piece of legislation crossed his desk proposing that the federal government provide for the indigent, President Grover Cleveland said
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.Thomas Jefferson believed that
Congress had not the unlimited powers to provide for the general welfare, but were restrained by those specifically enumerated; and...it was never meant that they should provide for that welfare but by the exercise of the enumerated powers.In 1921, President Warren G. Harding warned
Just government is merely the guarantee to the people of the right and opportunity to support themselves. The one outstanding danger of today is the tendency to turn to Washington for the things which are the tasks or the duties of the forty-eight [now fifty] commonwealths.At a time when the federal government had become increasingly comfortable taking on functions that were not within its constitutional purview, LDS Church President David O. McKay wrote that
No government owes you a living. You get it yourself by your own acts--never by trespassing upon the rights of your neighbor, never by cheating him. You put a blemish on your character the moment you do.Some advocates of a "living" Constitution are clear that they understand that the federal government has gone far beyond the powers that it was originally understood to have. Peter Zavodnyik writes:
The Constitution was a product of the classical theory of republican government which embraced a minimalist, even negative approach to public power. ...Such a system might have been appropriate for the eighteenth century... And so it is with the federal government--the demands made upon it over the last two centuries have grown, and it has responded accordingly. In the process, it has assumed powers that were not granted to it by either the Constitutional Convention or subsequent amendments. ...only by exceeding its designated sphere has the government been able to maintain a large middle class and the political stability that comes with it.I agree, but I disagree. The federal government has gone far beyond what the original thinkers said was its charter. How this can be a good thing, though, I can't comprehend.
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Other Articles in this series:
- General Welfare Clause: The Constitution's Great Limitation
- General Welfare Clause: Did Alexander Hamilton Waffle?
- How the Next American Generation Destroyed the General Welfare Clause