Today's Politicos vs The Words and Deeds of The Founders
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The Founders’ Fear

 In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.  Thomas Jefferson

The Constitution of United States of America was signed on September 17, 1787.  This year we will celebrate Constitution Day on Friday, September 16th.  We’ve submitted two blog posts in honor of Constitution Day.  Some of this has appeared in prior posts, but it seems fitting to repeat some points on a week that starts with memorials for 9/11 and ends with a celebration of our Constitution.

The design of the government under the Constitution was not haphazard.  Our Founding Fathers understood that governments can oppress people.  They knew it from their own experience—and they knew it from their extensive scrutiny of governmental forms throughout history.  Concentrated power was more than dangerous … it was life threatening.

That’s why:

  1. They balanced power between the three branches.
  2. They gave each branch robust checks on the other two.
  3. They gave the national government only enumerated powers, and retained all other power in the hands of either the people or the states.
  4. They used the states to check the national government.
  5. The members of each branch were chosen by a different method.
  6. The term of office varied by government position.
  7. An impeachment process was defined for extreme cases.

Concentrated political power frightened the Founders.  They believed that only by limiting government could liberty survive the natural tendency of man to dictate the habits of other men.  The balanced separation of power with checks was designed to prevent tyranny.  Each branch was given delineated powers, and then each of these powers was limited and checked by another branch or entity.  The system was purposely designed to slow governmental actions enough to allow due deliberation.  This frustrates those who want the government to always “do something” about every problem, but it also hampers the government from doing something grievous that affects our life, liberty, and pursuit of happiness.

The Constitutional Convention debated long and hard about whether to call out each power individually or, alternately, to list restrictions on general powers. Basically they had to decide whether to write down what the federal government could do or what the federal government could not do. Because they feared they might forget some crucial restrictions, the delegates decided it was safer to define the powers, instead of the limitations. Additionally, monarchies had general power, and since they had just escaped a monarchy, they would give their national government only clearly specified powers.  This was the safer route because if they made an error, it would leave the authority closer to the people.

The national government was not restricted for all time to the enumerated powers.  Non-enumerated powers were retained by the states or the people, but the Founders included an amendment process which the people could chose to use to delegate additional powers to the national government.  The 16th Amendment is an illustrative example.  Article I, Section 8 gave the national government the power to “lay and collect Taxes, Duties, Imposts and Excises,” with the caveat that “all Duties, Imposts and Excises shall be uniform throughout the United States.” The 16th Amendment expands national authority to “lay and collect taxes on incomes, from whatever source derived,” which authorized the infamous income tax.  It doesn’t matter if this was a good or ill-conceived expansion of national powers.  What matters is that it was done in the proscribed manner defined within the Constitution, and thus is a legitimate expansion of national power.  Unfortunately, this is a rare case of the national government receiving a legitimate expansion of power.  In almost all other instances, Americans have witnessed authority simply being usurped by the national government.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  This is backward.  The Constitution was never written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land.  The first outsized words of the Constitution read We the People.  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.

9 comments

1 Jeff Edelman { 09.14.11 at 8:14 pm }

“It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.” Perhaps this is indirectly so. But it is directly and immediately so of the our elected representatives who are sworn to uphold and defend the Constitution. It is their duty to impeach a president or judge who violates the Constitiution. It is there obligation to write legislation that is constittutional. If the latter would have been done since the inception of this country, we would not be in the horrific mess that we are in today. This is and was the spirit of the Constitution –self-governance. This ignoring of the Constitution began with the advent of politicians and the decline of citizen legislators. If you become a senator Mr. Bruning, I hope it doesn’t take the prodding of your constituents to do what is right i.e. constitutional. Lot of farmers in Nebraska. Are agricultural subsidies constitutional?

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2 Jalan { 06.08.13 at 8:08 am }

It seems to me that if we could somehow take back the Commerce Clause, the problem would eventually vanish. Throw out the tax code and bring in a simpler, less exploitable one, and let’s get on with our short lives.

Does anyone know how to remove the Commerce Clause?

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3 Reeve { 02.20.14 at 8:31 am }

As someone who has studied the Constitution, and it’s history, rather well, I gotta say, I believe you to be cherry picking parts of it to suit your ideology. The Constitution was a step up in federal power over the Articles of Confederation. Furthermore, at the time of it’s passage, there was a TON of opposition to it being too centralized. So I find the argument that the Constitution is all about limited government to be specious.

Furthermore, the Constitution does not give specifically listed and enumerated powers. It gives a broad overview of what the Founders thought the government could and should do, and it gave it the powers to do so. The very first power listed contains the authority to provide for the general welfare of society, and I’m sure you’re familiar with the necessary and proper clause. That’s hardly a specific power or desire being granted, rather it’s a broad overview of what view they believed government should do, and left it up to the people and actual representatives to agree on specifics.

The Founder feared government being used for private gains – as opposed to common gains. If the government is instituting policies that are generally good, aimed at the general population, and whose goals are not to promote one private group over another, then it more or less fell within proper governmental authority. Things like universal health care are not necessary against the Constitution, nor Welfare programs – because the goal of such programs are to promote and provide for the GENERAL WELFARE of the United States.

Oh, and it doesn’t mean individuals cannot gain from governmental policies. It just means, for example, the legislature can’t pass a law giving exclusionary rights to a certain company. Like say the East Indies Tea Company to set up shop right in Boston Harbor and avoid tariffs and other taxes.

I find it ironic that many modern “conservatives” misunderstand what the revolution was about just as much as the then-day Britain’s misunderstood what American’s were so upset about.

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Reeve Reply:

Oh, I forgot to add one thing:

You reference the Constitution giving enumerated powers. But it also tells the Government things it cannot do. Congress, for example, cannot pass a bill of attainder, or a ex post facto law. You talk as if Section 9 doesn’t exist. Why would the writers of the Constitution make a list of powers to give the government, and only those powers, and then make a list of things they could not do? If your proposal is rational, then they simply would have had the enumerated powers, and not had any restrictions, because you don’t need to restrict something if you never gave it in the first place.

Which is very good evidence that the founders gave the government more power than directly listed – and that they were aware of this enough to also specifically say things the government could not do.

Like I said, I feel like you’re cherry picking. As I feel most libertarians do (especially with Locke and other philosophers of the time).

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David Molinari Reply:

FYI: Thomas Jefferson latter stated that the Constitutions first amendment should have been that the government could not borrow money this alone would limit government and prevent the invisible perpetual chains of debt, inflation and taxes to oppress the common people or the not privileged. Constitutional Law is Common Law and Common Law has not been heard in the lower courts since 1933 for now it is the Law of the money/merchant law/maritime law that runs the courts and quite honestly it is a fraud for the founding fathers knew that the true definition of jurisdiction is that every court and judge must recognize The Constitution in order to have jurisdiction(blacks law dictionary 1st and 2nd edition definition of jurisdiction). Any civil matter that exceeds $20.00 is guaranteed a jury trial of not less than 12 jurors by the Constitution but the courts or judges never honor this for they are of a privileged group known as the bar association and this private country club is in bet with the unconstitutional FIAT money for it in itself is a ponzi scheme.

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4 James D. Best { 02.22.14 at 10:11 am }

I hesitated to respond to Reeve. Hit and run trolls seldom return to the scene of their misbehavior. Besides, they’re convinced they’re insightful, not gullible. Progressive trolls Google a subject, then fly around the internet sprinkling cut and paste propaganda.
It’s true that the Constitution assigned more power to a central government than the weak Articles of Confederation. No one has ever contended otherwise, so it’s specious to use this straw man argument to claim the Constitution bestows infinite power. The Framers wanted a stronger government, but not one with unrestrained power.
Luckily, Reeve proves the point. Reeve argues that “Furthermore, at the time of it’s passage, there was a TON of opposition to it being too centralized.” Yes, indeed. The Antifederalists yelled from the roof tops that the Constitution would create a government so powerful that tyranny was inevitable, while the Federalists reassured people that this was a tightly constrained government with limited powers. Both sides argued for limiting government. Thank you Reeve for confirming the point of the article.
Reeve writes, “The very first power listed contains the authority to provide for the general welfare of society, and I’m sure you’re familiar with the necessary and proper clause.” The general welfare comment disproves Reeve’s claim to have “studied the Constitution, and it’s history, rather well.” The phrase general welfare is used twice in the Constitution, but Reeve’s claim that it is the “very first power” demonstrates extraordinarily shallow understanding of the Constitution. Reeve must be referring to the phrase when used in the preamble, where general welfare is obviously stated as a goal, not a power … and is listed fourth, not first. It reads:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Let’s see. Establish, insure, provide, and then promote. I believe those verbs decline in strength in relationship to the importance of the goals. This was no accident. Gouverneur Morris was a master of the English language. (Unlike Reeve, who doesn’t know the difference between it’s and its.)
But let’s not take my word for it. What did the Father of the Constitution say? James Madison wrote, “With respect to the words general welfare, I have always regarded them as qualified by the details of power connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution … [that] was not contemplated by the creators.
Reeve brazenly states that “the Constitution does not give specifically listed and enumerated power,” and then says the necessary and proper clause justifies unbridled national power. Perhaps Reeve has never read the Constitution. It reads, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” If there are no specifically listed or enumerated powers, what in the world did the Framers mean by foregoing powers?
Generally, Reeve’s rant is standard progressive cant. It is an attempt to dismiss the Supreme Law of the Land by those who object to being constrained from doing whatever they want with governmental powers.

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Bill Ritzmann Reply:

Well put, Mr. Best. Mr. Reeves would do well to understand that within the Constitution, the “United States,” a reference to the formal association of the States, the “States” and the “People” are distinct entities. Therefore, entitlement programs are not authorized by Constitution, either directly or indirectly.

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5 Doug Regulski { 03.11.18 at 6:06 pm }

To Mr. Reeves comment that there would be no reason to list restrictions on the government if the Constitution and its accompanying Bill of Rights had not implied some how that the Government had some right in these areas, is in error. You may and often have to list, to the best of ones ability in this case our founders, items you want to ensure some future entity does not try to infere or convince others that a certain right or duty of government was given by the Constitution. So the founders listed things of concern that they had seen occur in other forms associations, governments, or countries and wanted to make sure that our U.S. government did NOT try to deny The People these rights.

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6 Kevin Schmersal { 07.18.18 at 4:32 am }

Don’t you just know that you are in for a WTF moment when someone begins their post with these four words; “As someone who has…”

Mr. Best, Your article is outstanding! It is well written and without pretense. Your reply to Mr. Reeve was even better than the original article posted. Well done, sir.

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