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Thursday, July 12, 2012

The General Welfare Clause: An Anti-Federalists Warning about Hamiltonian Republicanism

Article 1 Section 8 Clause 1 states: The Congress shall have 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; This Clause is known as the taxing and spending clause and is used repeatedly by both parties to justify just about everything they spend our hard earned money on. What did our Founding Father's say about it? Has it's purpose or meaning been perverted? Even during our Founder's ratification debates this clause brought two very different sets of ideas to argue. Did the Anti-Federalists (those who supported a Bill of Rights to be attached to the Constitution) warn our nation? . Richard Henry Lee who wrote as the Federal Farmer said "to lay and collect internal taxes, in this extensive country, must require a great number of congressional ordinances, immediately operating upon the body of the peoples; these must continually interfere with the state laws, and thereby produce disorder and general dissatisfaction, till the one system of laws or the other, operating upon the same subjects, shall be abolished...Further, as to internal taxes, the state governments will have concurrent powers with the general government, and both may tax the same objects in the same year;and the objection that the general government may suspend a state tax, as a necessary measure for the promoting the collection of a federal tax, is not without foundation." Brutus in Anti-Federalists No. 5 writes: "To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a news-paper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property: — It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacks, and books: — It comprehends an excise on all kinds of liquors, spirits, wines, cyder, beer, etc. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of three general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States. Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to pray [sic] upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution. It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modem times, and especially in the English nation on the subject — If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into execution? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it. — He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power. Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to such as take things upon trust, nothing will awaken them to reflection, until the iron hand of oppression compel them to it." William Symmes Jr. stated that the term general welfare might be applied to any expenditure whatever instead of just the enumerated powers of congress. Thomas Jefferson wrote in a letter in June of 1817: "You will have learned that an act for internal improvement, after passing both houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the constitution, which authorizes Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the federal doctrine. Whereas, our tenet ever was, and, indeed, it is almost the only land-mark which now divides the federalists* from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action: consequently, that the specification of powers is a limitation of the purposes for which they may raise money." Patrick Henry who first started demanding taxation be done only at the local level in 1765 said this in the Stamp Act: "Resolved, therefore, That the General Assembly of this Colony, together with his Majesty or his Substitutes, have, in their Representative Capacity, the only exclusive Right and Power to lay Taxes and Imposts upon the Inhabitants of this Colony: And that every Attempt to vest such Power in any other Person or Persons whatever, than the General Assembly aforesaid, is illegal, unconstitutional and unjust, and have a manifest Tendency to destroy British as well as American Liberty." It is clear while reading through these quotes from these Founding Fathers that they were worried about this clause being to vague and that at some future point in America that the general government would abuse it for their own purposes instead of defense of the States. Some even went so far as to try to have this clause removed from the Constitution before ratification. Time has only shown these Patriots to be correct in that congress would trample States' Rights through taxation and other means by declaring that this clause makes it constitutional.

Sunday, July 8, 2012

Nullification: Is it Constitutional?

The history of Nullification has a long history in the US. It started in 1798 when congress passed a set of Acts known as the Alien and Sedition Acts. At the time congress was worried about a possible war with France (ironic that even then war concerns trumped liberty) and thought it prudent to outlaw speech they deemed supportive of the French. These Acts were supported and passed by the Federalists who used them mainly to suppress political opposition from the Anti-Federalists/Democratic-Republicans. Two Founders, Madison and Jefferson, argued that these two Acts were (and are) unconstitutional. In response they created the Kentucky and Virginia Resolutions. In the Kentucky Resolution Jefferson states: "That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. While Madison is the author of the Virginia Resolution and of the Constitution, it is interesting to note that even though he was a Federalist he came to this conclusion: "That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact--as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them." Through nullification, the States have the ability to uphold the Constitution and the Oath in Article 6 clause 3. This was a way for States to act as a check or safeguard against a tyrannical federal government in case it absorbed powers not enumerated in the first three Articles. They also included the 10th amendment in the Bill of Rights to clarify this. The amendment states: 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. Unfortunately the Supreme Court has a long history of ignoring States Rights and always being in favor of expanding federal powers that were never delegated to the general government. This started with Justice John Marshall and has continued to the present day. The biggest test to date of nullification and States Rights was the War for Southern Independence more commonly known as the Civil War.Originally the war started out not about slavery but about self governorship. The reason I say for Southern Independence is that the States believed that the Constitution was a contract between the themselves and as such could be ended when so desired. This means that as the States entered into the contract voluntarily, they could also leave as they had not given up their sovereignty. In fact the Revolutionary War was fought because the Colonists refused to implement Parliament's taxes and laws which thereby nullified them. The Founders then understood that nullification could happen at many different levels of government, especially when Thomas Jefferson wrote this in the Declaration of Independence: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." When laws are passed by Congress that violate the Constitution then it is the duty of the respective States to preserve civil liberties at all costs. Congress will always find a new excuse or reason to pass a law. If our States fail to act as a check on the federal system then we can be sure to repeat history and We the People will once again be forced to rise up and act as the ultimate check on the system with a revolution.

Wednesday, July 4, 2012

A New Declaration of Independence

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.  Such has been the patient sufferance of these States; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present and former Congress' is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let facts be submitted to a candid world. They have refused to obey their Oaths to uphold the Constitution. They have passed laws favoring certain industries so as to create an aristocracy. They have relinquished their power and duties to the President thereby ending a Republican form of government so promised. They have plundered our national treasury for the sake of foreigners through a central banking system. They have erected a multitude of New Offices, and sent throughout the Nation swarms of Officers to harass our People, and destroy their substance. They have combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving them Assent to their Acts of pretended Legislation. For imposing Taxes on us without our Consent by declaring it a penalty or a fee. For depriving us in many cases, of the benefits of Trial by Jury through the excuse of terrorism. For transporting us beyond seas to be tried for pretended offenses such as terrorism. For altering fundamentally the form of our Federal Government. They have excited domestic insurrections amongst us, and have endeavoured to bring on the inhabitants of our frontiers, the merciless United Nations, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Congress, whose character is thus marked by every act which may define a Tyrant, is unfit to be the representatives of a free people. Nor have we been wanting in attention to our American brethren. We have warned them from time to time of attempts by our legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our liberties. We have appealed to our native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, publish and declare; that the citizens of the united States are absolved from all Allegiance to the American congress, and that all political connection between them and the Federal Government, is and ought to be totally dissolved; and that as Free and Independent States, have the full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States have the right to do. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Sunday, July 1, 2012

Whats wrong with the Supreme Court?

This last week of June has been a controversial one for the Supreme Court. Their decision that corporations are equal to individuals as well as saying that Congress has the authority to force individuals to buy a certain product through threat of fines has made it seem like the Court no longer uses the Constitution or any of the Federal Convention notes as a means to keep the original intent of our Founders alive.What does the Constitution say in regards to these two cases? In Article 3 it describes what the Supreme Court can have jurisdiction over. This means that if the Court wants to hear the case then it can do so according to Section 2. However, there are many instances in which the Court has ruled against the Constitution or did not get involved when they should have. In 1798 the Federalists (those Founders who wanted a strong central government) passed a set of Acts called the Alien and Sedition Acts in order to suppress the voice of the Anti-Federalists (those founders who wanted a Bill of Rights and a limited central government). These acts caused division among the Federalists with James Madison saying, "It would seem a mockery to say that no laws should be passed for preventing publications from being made, but that laws might be passed for punishing them in case they should be made."(The Virginia Report 1800) The Supreme Court failed to bring these Acts for judicial review as that power was not established until 1803 in Marbury v. Madison. In 2001 Congress passed another Act that once again expanded government power and defied the Bill of Rights. This Act is the Patriot Act and it violates the 1st,4th and 6th amendments. So far the Supreme Court has not brought this for judicial review yet. It is no surprise then that the Court once again failed to act as a check on the system when looking at Citizens United and Affordable Car Act better known as Obamacare. The Citizens United bill would have put restrictions on how corporations could corrupt or influence the political system. The Court failed to overturn their previous decision by saying that corporations have the same rights as individuals and therefore can contribute to political campaigns. This enables them to offer huge amounts of money that most Americans and small business' can not match giving the corporations the ability to bribe the politicians. This in turns gives the politicians an excuse to turn a blind eye towards illegal activities and towards their constituents. Sen. Bernie Sanders said it best when he said, "As a result of the Supreme Courts' refusal to reconsider its decision in Citizens United, we are rapidly moving toward a nation of the super-rich, by the super-rich, and for the super-rich. That is not what America is supposed to be about." Thomas Jefferson even warned what could happen if corporations were allowed to influence campaigns when he wrote "“If the American people ever allow private banks to control the issue of their money, first by inflation and then by deflation, the banks and corporations that will grow up around them (around the banks), will deprive the people of their property until their children will wake up homeless on the continent their fathers conquered." We have started to see this happen with how the big banks are foreclosing on millions of homes, some of those illegally. The Courts' decision on Obamacare is sadly not surprising in that these nine unelected individuals seemed to forget the how to keep laws moral and what the Constitution says. Laws, in order to be moral must defend individual Rights (life, liberty, property). To use law offensively as is the case here, is to convert law into a social engineering or to legalize plunder. How is this social engineering? By declaring that government can force you to buy a product it is teaching future generations that there is no limit to governments power and that not even the Constitution will be regarded as law. This legalizes plunder by forcing you to buy products from a company thereby reducing the amount of money available to your family. This is the same type of tyranny that the Founding Fathers faced with the British Stamp Acts. However, the Court declared this Act constitutional because it was a tax and congress has the authority to tax. There is just one problem with that assessment, the 16th amendment clearly states that taxes can only be levied on incomes, no matter the source. So if you are buying something, this would fall under a States Right issue as Congress does not have the authority to levy taxes on individuals purchasing products (a sales tax) according to Article 1 Section 9 clause 4. The Court also claims that the Congress has this power because its regulating commerce but Article 1 Section 8 clause 3 says that Congress can only regulate commerce with foreign nations, among the States (to prevent them from taxing goods to heavily from other States) and the Indian tribes, not individuals. Another clause from the Constitution that is being used to support this Act is the general welfare clause. James Madison warned America of the possible abuse of this clause by saying, "If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. ... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America." How can America go about fixing unconstitutional laws written by a power hungry Congress and upheld by the Supreme Court? Nullification is the answer. Thomas Jefferson argued that States have the right to nullify Federal laws that violate the Constitution in response to the Alien and Sedition Acts.In 1798, Jefferson wrote the Kentucky Resolutions that said because the Constitution was a treaty between the several States that only gave certain limited powers to the federal government, any power not given but used was null and void.He also warned that Congress could not use the necessary and proper clause for anything it wanted as that would destroy the point of the document.These two cases can be nullified by the respective States, but only if the People put pressure on their local governments to set an example and follow the law.