Is our American form of government intended to be limited and narrowly defined in its scope or was it supposed to be unlimited and unrestrained in its reach? We explore the five clauses of the Constitution most often misinterpreted and abused: The General Welfare Clause, The Necessary and Proper Clause, The Interstate Commerce Clause, Treaty Law, and the Supremacy Clause. Then we look at modern day examples of this abuse and misinterpretation.
In the Constitutional
Main Presentation: “Power in the Constitution”
What is the Root of the Problem?
Power in the Constitution kind of has a double meaning. The first idea is the Founders understood that the granting of power and the restricting of power in essence is government. That’s what it’s all about. Quite honestly America is great because of what government was restrained from doing. Not because of what they’ve been able to do, but what they were restrained from doing. That’s what’s made America free and prosperous.
The second part of power in the Constitution is the idea that once you know what the words say and what the original intent of the Constitution is you have power. Those words in the Constitution have meaning. That meaning can guide, direct and help us. So you have power in the Constitution. It’s no longer a debate between different philosophical ideas, or different party platforms and strategies, and media pundit suggestions. No, it’s all about what’s in the Constitution. We’re a republic. Republic means rule of law. Our law is the Constitution so we better know what the Constitution says. That’s what we’re going to get into. What the actual words of the Constitution are to help us out.
Let’s start at the beginning then and say we all agree that our country does have some challenges and problems. What we really need to first identify is the proper diagnosis. Who is the root of the problem. If we have our proper diagnosis then we can get focused on the proper solution. Half of the country is going to say, “Look, it’s those Democrats. They’re the problem. If we just get them out of power we’re going to be able to fix everything.” Then half the country says, “No, it’s the Republicans. Look at the mess they got us into.” In this two party system we have that’s what we hear. Then they start pointing fingers back and forth and some savvy people say, “No, it’s Congress as a whole.” We can look at it and say it’s actually Congress itself. Well, when we really look at the root of the problem, who is the problem? It’s us because Congress and what happens in government, they’re just symptoms of the problem, aren’t they? When we the people are allowing these things to happen then that’s the challenge, isn’t it? We’re condoning that behavior. We’re accepting it and we continue to reelect and just allow this to happen. We can complain and maybe throw the shoe at the TV, but we’re the ones allowing this to happen.
James Garfield put it this way. I like how he said it. “The people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption. If it be intelligent, brave, and pure, it is because the people demand these high qualities to represent them in the national legislature.” Very true, right? They are simply a reflection of who we are. It’s really not all that complicated to say that the root of the problem is us, because they reflect our values. They reflect what we think. That’s why we send them there because they are our representatives.
Another interesting quote by Daniel Webster. He said, “I apprehend no danger to our country from a foreign foe…Our destruction, should it come at all, will be from…the inattention of the people to the concerns of their government, from their carelessness and negligence…” Interesting. We always think about it’s this outside foe, someone’s going to attack us and destroy us. Founder after Founder has said it’s not about that. The story of history refutes that. The story of history says it’s always internal. It’s from us not paying attention. The same, “Well, I’m patriotic. I voted 4 years ago and I plan on voting in 4 years.” That’s not what freedom is about. The price of freedom, as Jefferson said, is eternal vigilance.
Going on with this quote from Webeter. “I fear that they may place too implicit a confidence in their public servants, and fail properly to scrutinie their conduct; that in this way they may be made the dupes of designing men, and become the instruments of their own undoing.” People may say, “Well I trust them. I elected them. They represent me. I’m sure they have my best interests at heart. I’m just going to let them take care of things.” Well, wait a second. Just sit back? No, that’s not what freedom is about. Freedom is something active. It takes some work.
Webster ends his quote by saying this. “Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.” That’s what we’re here today to do is to make ourselves intelligent as to what the Constitution says so we can apply the remedy. That’s the power of principles. That’s the power of the words in the Constitution. Once you know those you can apply the remedy to whatever it may be. The case, the law, the bill, the candidate, the issue, the current event…that’s the power of principle. If you have that principle, the basis and foundation, that’s how you see the world now because you have something foundational you can anchor your thoughts and ideas in.
Thomas Jefferson says this: “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” It’s very simple. We’re free because we’re vigilant, because we’re aware and because we’re involved.
Anybody here heard of Alexis de Tocqueville? Have you heard that name before? Alexis de Tocqueville wrote a big, thick volume called Democracy in America. He was an interesting young man. He was about 25 years old when he came over to America right around 1830. He came ostensibly from the French government to study our prison systems. When he got here he took quite an interest in the American system. He spent about nine months travelling all across the countryside figuring out what is this magic freedom formula that America has? How is it that they’re such a new fledgling country and they’re just so successful?
Out of all these writing I’ve pulled a quote that I think is, to me, the most indicative. It kind of explains why we’re who we are. “…Every citizen is taught…the history of his country, and the leading features of its Constitution. …it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.”–Alexis de Tocqueville
It sounds like today, right? No, it kind of sounds like the opposite, doesn’t it? Today it’s extremely rare to find someone even closely acquainted with what the Constitution says. In fact, it’s a phenomenon. If you find someone who is out there quoting the Constitution they are kind of to be feared. They are probably a weird, wacko extremist. What’s Tocqueville saying? He’s saying the foundation is that every citizen knew and understood and loved the Constitution. They lived those principles and knew them. That was the key. He said that’s the key. That’s why they’re happy, that’s why they’re good, that’s why they’re free people.
As far as understanding what the Constitution means, because Tocqueville says, “Look, we need to get to know what it is, and that’s what all American citizens do.” Jefferson offers the comments what does this Constitution mean? He says, “The Constitution[‘s] meaning [can] be found in the explanations of those who advocated [it],…These explanations are preserved in the publications of the time.”
So, what does the Constitution mean? And who should we look to? I’ve got an idea. Let’s look to 21st Century Supreme Court rulings. That’ll tell us what the Constitution means. Not according to Jefferson. He says, “Look, when we formed this it was a contract with the people in their states to form a federal government.” That Constitution is that contract. Why don’t we go and find out what they had to say about it?
Madison took meticulous notes in the Constitutional Convention. There’s something called the Federalist Papers. Have you ever heard of the Federalist Papers before? A great explanation. Essentially the marketing piece, the marketing document to get Virginia and New York to sign on to ratify the Constitution. In all those essays they wrote in a New York newspaper you can think well, what do they mean by this? Just go look it up and it’ll tell you. It tells you what the original intent is. We don’t need to have a new, modern day interpretation. We need to go to the publications that are preserved in the time and find out what it meant. Pretty simple concept.
What is Government?
Speaking of this idea of the importance of the Constitution, why it’s so fundamental, now let’s start to talk a little bit about government. We’ll take the Constitution and those principles and how does it apply into this thing we call government? We need to start where it all started. The foundational document of our country is the Declaration of Independence. We’re all familiar with the words “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 kind of rolls off our tongue. We know that, that’s who we are. That’s what we know. It’s interesting, we’re familiar with those words, but the very next phrase says “That to secure these rights, Governments are instituted among Men.” That’s critical. We don’t hear a lot about that, but it’s very critical, “to secure these rights Governments are instituted among Men.” That answers for us the purpose of government.
What’s the purpose of government? It’s to secure our rights. I always like to point out these two key words. I think they’re interesting. One is to protect and one is to provide. Government’s role is to do what? To protect, to secure our rights. Not to provide. So at a 10,000 foot view level if you want to just look in real general terms, in a big picture term, if what government is doing is providential or charitable or benevolent, or kind, or good…that’s not the standard. What they should be doing is to protect us. That’s their job is to protect our rights. That’s why they exist. That’s what our Declaration says. That’s the whole point of the government is to protect our rights. Which is kind of interesting.
Now notice also the central role of God in this Declaration. He’s our Creator. He has endowed us inalienable rights. He’s central, isn’t he? Let’s compare this founding document that we have in our country with some other ideas such as the UN. That’s another governmental body out there. We look at these self-evident truths, Mankind are Created Equal, etc., etc. Do you find those in the UN? What do you think? They’re not there, are they? They’re not there. They say, “No, no, no. Those aren’t there. We’ll tell you.” And every once in a while the UN’s pretty clear, pretty honest with what their intentions are.
Here’s what they have to say in Article 29 Clause 3 of their UN Universal Declaration of Human Rights. This is interesting. “Rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” So our Declaration of Independence says that our rights come from God. The United Nations Declaration of Rights says that the rights come from them. In other words, their god. They’ll be glad to tell you when you can and when you can’t exercise those rights, because afterall, we gave them to you. So we’re in charge of them. Interesting. It’s sad, it’s not interesting. It’s a sad commentary on this general big body of governments that we all can look at and say, “Well they’re all just there to help with world peace and things like that.” Well, actually when you look at what they say about what their intentions are they are diametrically opposed. You have two different systems of government. I call them diametrically opposed but also I like to point out that they are diabolically opposed. One honors God and man, and one says God doesn’t exist we tell man what they will and will not do. They’re diabolically opposed, not just diametrically opposed. And they’re not just two different ideas. One honors freedom, and one destroys it. Kind of interesting.
What is government then? What’s this general thing we call government? Frederick Baustian, he’s a great philosopher. He wrote a book called The Law. In the Law, he’s a Frenchman as well, he wrote this in 1851 or right in there. He said, “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” When the Founders got together and had this blank slate and said, “Oh man, we got a chance to start and do this right. What should we do?” Someone didn’t raise their hand and say, “I think we should give men life.” Or, “I think we should give them liberty.” Or, “I think we should give them property.” No, those things already coexisted. We know in the Declaration those are coexistent, unalienable rights that came with us when we were born. It’s a fact that those existed. That’s why men united together and made government, was to protect those things. That’s what government is, it’s coming together and finding people that can make laws and get us to be free.
George Washington, he says this. I love this quote. “Government is not reason. It is not eloquence. Government is force; like fire it is a dangerous servant and a fearful master.” Government is force. That’s what it is. When you get pulled over the cop doesn’t read you a poem or philosophize with you. He says here is what you did wrong, here’s your ticket. You will pay. If you choose not to pay we will throw you in jail. We’re going to exercise force on you.” Washington compares it to fire. Is fire inherently a bad thing? Any of you here use fire before? Yeah, we use it all the time. It’s not a bad thing. But can it get out of control, really quick? It can. That’s a great analogy. Government is just like fire. You better watch it. There’s no question it’s good that government has force. How else are they going to protect our rights if they have no force, no power to do so? Quite simple.
We’re going to do kind of an elementary math equation. We’re essentially going to say government equals what? Government equals power. That’s what government is. Force, power. That is at a very basic level what government is and why it exists. You can see why if you’re not willing to use force and power to do something then government shouldn’t be doing that. If it offends your conscience to do something that would require force then you better not have government be doing that otherwise you’re in the wrong realm. You’re not doing what government’s proper role is.
Now, Madison says this, kind of summing up what we just said. “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” Is that true? You bet because it’s in human hands. It’s not like we have perfect men and women who don’t want power and just want what’s good for everyone. The reality is we are who we are. It’s liable to abuse. So how do you manage that abuse? How do you stop that propensity or at least keep it in check? The liability or the propensity to abuse power.
Thomas Jefferson answers it this way. “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.” That’s how. “Bind him down from mischief by the chains of the Constitution.” When I first heard this quote I thought of chains of the Constitution and I thought of Marley in The Christmas Carol, these chains binding him down. Why is that? Because men have the propensity to corrupt and be corrupted and seek power at the expense of the good of others. What do we need to do? We need the Constitution to say, no you can’t do that. You can do this, but only under these conditions. That’s the idea. That’s why they had the Constitution to bind them down. Kind of an awesome quote isn’t it? That’s what it was there for.
A quote that is attributed to Patrick Henry says this. “The Constitution is not an instrument for government to restrain the people. It’s an instrument for the people to restrain the government, lest it comes to dominate our lives and interests.” Our Constitution is to bind the government, not to bind us. They are our servants, not our masters.
Four Principles Regarding Power
We’ve talked about the Constitution and why it’s so important. We’ve talked about government and what it is. Now we’re going to talk about four principles regarding power specifically. Since government is power, let’s talk about some principles surrounding that and some of those that show up. One of the very first principles is this idea of delegated powers. In America, who is in charge? We the people. The very first words of the Preamble of the Constitution, we the people are in charge. We the people are the ones who have rights. God gives rights to who? To people, and not just to collective people, but to individuals. When I have a right from God I have an accompanying duty, power, and authority that comes with that right. I as an individual can do certain things. I can delegate. I can give the power and authority associated with that right to government to act on my behalf. They become my agent to act for me. Can I give to them powers I myself don’t have? No, you can’t do that. You cannot delegate to someone a power that you yourself don’t have. That’s an important concept to understand.
Washington puts it this way. “The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing…” That’s America. That makes sense. That’s what we do. We have people work for us. We assign them to do things that we could do but don’t. Let them do it.
The very next phrase in the Declaration of Independence, from our earlier conversation, is “…deriving their just powers from the consent of the governed.” Kind of an interesting concept. This idea that government only has just powers if we ourselves first have those powers and then consent to give them to them. Do I have the inalienable right to defend myself and my property? You bet. It’s God given and I can do that. Can I give to the County Sheriff the ability to protect and defend me? Yes, I can delegate to him that power and that authority. Does he have that right or does any government have that right ? No they don’t have the right. The right remains with me, but I have delegated them the power to do that. Do I have the right to say, “Hey you have five horses and they only have one. Stop being so greedy. Give two of them to this person and you’ll both have three. If you don’t do that I’m going to throw you in jail because you’re being greedy.” Do I have that right as an individual to do that? No, and therefore I can’t delegate that power to the government to do that on my behalf, to act as my agent. That’s not within their proper authority because I can’t delegate to them a power that I don’t have. Deriving the just powers from the consent of the governed. The basic concept is absolutely powerful. It is very, very important to understand that basic principle of Delegated Powers.
Number 2 is Limited Powers. There are two quotes here that we’re going to use quite a bit to discuss this. The first quote is from James Madison which comes out of The Federalist Papers, #45. He says, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined.”
Jefferson follows up with this. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power not longer susceptible of any definition.” That’s what the Constitution is all about, limiting power. We limit it and say here’s your limit. Jefferson says when they justify taking one step out of that limitation, out of those boundaries, it’s completely obliterated. They can do whatever they want to. How does he put it? “No longer susceptible to any definition.” The same justification or rationalization to take one step is the same one to take a million steps outside. When you leave the corral gate open the cows go out, don’t they? This idea of a limitation of powers. Because our government is based on limited powers, not unlimited.
Principle #3, Separation of Powers. We all know there are three different branches of government. Legislative, Executive and Judicial. Those are our three basic govenmental branches. We’ve heard before that those are separate but equal. Have you heard that? They all balance each other so everything must be equal, of course. Let’s explore that a little bit. I’m going to ask you five different questions. We’ll try to see if they really are equal.
Which branch has the power to make all laws? Legislative. Article 1, Section 1, Clause 1. Congress is the only one who can make laws.
Which branch is closest to the people and is elected directly by them? Congress, specifically the House. They are the most closely tied to the people.
Which branch has the greatest number of persons, representative viewpoints, and therefore the will of the people represented? The Legislature once again.
Which branch has the power over the purse? Who is in charge of all the money? The Legislature, Congress. The House specifically in this case.
Which branch has the power to impeach members of the other branches? Once again, Congress.
So, are they separate but equal? Or is one stronger than the other two? The Legislative is stronger. It’s obvious with their powers. The Legislative is stronger than the other branches. On a side note. Article 1 of the Constitution is written about the Legislative Branch. It’s about half of the volume of the Constitution. Another indication that maybe it is the most powerful branch. Why would that be? Why would the Legislative have these super powers? Why would it be? Because Congress represents who? Us, the people. And who’s in charge? We the people are in charge so it only makes sense that they would be in charge because then there is a proper republic, a representative government. They answer to us, they are accountable to us, they do what we tell them to do. Otherwise we fire them and hire someone else to represent us. See how that works? So it makes sense that they’re not separate but equal.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may just be pronounced the very definition of OSHA….People always finish that and say tyranny. Well it’s OSHA. I’ll give you an example why. I was in Human Resources for ten years in my company. An OSHA officer showed up one day and said we’re going to charge you $27,000. I said, “Wow, why?” They said you didn’t have this little guard. I guess somewhere in some lab this little guard could have hurt someone, but I’m telling you I could have put my finger there all day long and it never would have hurt me. But, they have their standards and they’re going to charge me $27,000. I kind of tiptoed around things a little bit and said, “Well, what if theoretically I don’t agree with your judgment?” He said, “Oh yeah, you can go to a judge. Oh good, you can go to a court.” Perfect, well just tell me a little bit more about that. Well it’s an OSHA judge, it’s an OSHA court. I said, “Oh, I don’t need to waste my time, here’s your check. Come on, give me a break.” So what happens? OSHA makes the law, OSHA enforces the law, and OSHA judges whether the law is fair or not. All three functions of government. The very definition of tyranny isn’t it? Interesting.
Going on with this quote. “The preservation of liberty requires that the three great departments of power should be separate and distinct.” James Madison, Federalist #47. This separation of powers is kind of a horizontal check and balance. You’re looking to the side, checking Legislative, Executive, Judicial.
The fourth principle we’re going to talk about is this idea of Division of Powers. Division of Powers is a vertical check and balance. It’s something a lot of people don’t like to talk about. It kind of sounds extreme. Well, what do you mean? The states are going to tell the federal government what to do? They can’t do that. They’re subservient. They are servants of the federal government. We’re going to talk a little bit more about division of powers, because it’s a critical principle as well. The fourth principle we’re going to talk about.
We’ve already seen the first part of this quote. “The powers delegated by the proposed Constitution to the Federal Government, are few and defined.” Few and defined kind of looks like this. It starts here and ends here and there’s not much in between. (holding his hands in a small rectangular shape) To go on with this quote, “Those which are to remain in the State Governments are numerous and indefinite.” Few and defined looks like this (small rectangle), numerous and indefinite looks like this (spreading arms wide apart).
Continue quote, “The former [Federal powers] will be exercised principally on external objects (all the external things we do as a nation such) as war, peace, negociation, and foreign commerce…” On the other hand, “The powers reserved to the serveral States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people and the internal order, improvement, and prosperity of the State.” James Madison, Federalist #45. This division of powers is based on the concept of federalism. Federalism says you have different roles for different levels of government. The federal government is in charge of the external things. Then you have the state and you have the county and the cities. The basic principle behind federalism is that you always solve the problem at the lowest level possible. Don’t ever delegate to a higher level of government that which you can do on your own. Don’t ever delegate to a higher and higher level, always keep it at the lowest level possible to keep the power with the people. The Division of Powers is based on that concept.
Five Misinterpreted Constitutional Clauses
Supremacy Clause, General Welfare Clause, Necessary & Proper Clause,
Interstate Commerce Clause, Treaty Clause
We’re going to move on here to kind of an interesting concept. Excuses for Unlimited Power. One of the most insidious ways to try to trick people into saying something is justified is to use the Constitution. They use a misrepresentation of what the Constitution says to say no we can do this. Have any of you heard before, “Oh we can do that because of the Necessary and Proper Clause.” Or, “We can do that because of the General Welfare.” You think I know those words are in the Constitution, but that doesn’t really make sense. But it must be constitutional because they are quoting the Constitution. We’re going to go through and look at these excuses. In all my conversations across the state I’ve never had a conversation that hasn’t revolved around one of these five issues. We’re going to discuss and look truly at what these different excuses are and understand them for what they are.
Excuses for Unlimited Power
Supremacy Clause (Article VI)
General Welfare Clause (Art. 1, Sec. 8, Cl. 1)
Necessary and Proper Clause aka “Elastic Clause” or “Implied Powers Clause” (Art.1, Sec. I, Cl. 18)
Interstate Commerce Clause (Art. 1, Sec. 8, Cl. 3) This is kind of the granddaddy of them all right now. This is what’s bringing us all kinds of craziness is through the Interstate Commerce Clause
Treaty Law (Article VI)
What we’re going to do is we’re going to take each one of those and break them down and look at them specifically. What do they mean? When you know what they mean then you have the truth on your side and you have that foundational what’s in the Constitution. You no longer going to argue about well we should be able to do this, and this, and this. No, no, no, let’s take it back to the foundation of what the Constitution says. Then we can go on a logical basis from there to discuss these items because, once again, we’re a rule of law. What does our Constitution itself say?
The first one is Supremacy Clause. “This Constitution, and the Laws of the United States which shall be [passed by Congress?]…shall be the supreme Law of the Land.” As long as a law is voted on by more than 50% of the House and 50% of the Senate, and the President signs it, it becomes the Constitutional law of the land.
If you get a Congressman in Florida and a Congressman in Texas and say, “Hey, you put some money in my bill and I’ll put some money in your bill and as long we both vote for them we’ll be good. As long as we get 50% of the people to agree on that it becomes Constitutional.” Does that sound like it’s based on law or based on your negotiation skills and based on political skills? Let’s compare this.
Remember these quotes we saw before? “Few and Defined” vs. “Boundless Field of Power”. What does that sound like? That sounds like a boundless field of power doesn’t it? As long as you can convince people and work together you can make laws that violate the Constitituion, but they’re Constitutional because enough people voted for them. You conviced them to. How does that work? The Supremacy Clause. How does that pan out? The way it pans out is when you look at what the Supremacy Clause really says. It doesn’t say it just has to be passed by Congress, that’s what makes them Constitutional. It says that they have to made in pursuance thereof. “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme Law of the Land.” Made in pursuance of what? The Constitution. What if a law doesn’t pursue the Constitution. Then it’s not Constitutional.
We’re taught so often it’s kind of complicated, you wouldn’t really understand it. Well no, it’s really simple. That’s why we have a written Constitution, we can read it. It doesn’t pursue the Constitution therefore it’s not Constitutional. It’s that simple, there’s nothing more to it. The Supremacy Clause is often really misrepresented and misunderstood. A lot of people say it says in the Supremacy Clause that the federal government is supreme over the states. That’s not what it says. It says the Constitution and all the laws which are made in pursuance of the Constitution are the supreme law of the land. There’s a huge difference there. Although at first glance you may say it’s about the same thing. No it’s not. The Constitution is what’s supreme.
Excuse #2 for Unlimited Power. The General Welfare Clause (Article I, Sec. 8, Clause 1) “The Congress shall have Power…to provide for the common Defence and general Welfare…” If I hear General Welfare, and I’m a U.S. Congressman I get this warm feeling that starts in my heart and it spreads all the way to my toes and fingers, right? As long as it’s good for somebody, somewhere I can regulate it. I can be in charge. I can make laws about it. What does that sound like? Does that sound like “Few and Defined” or “Boundless Field of Power?” It’s a “Boundless Field of Power” isn’t it? As long as it’s good for somebody somewhere, or everyone at the same time then we can do it. Let’s explore this and figure it out a little more because General Welfare can sound that way. At first glance you say, “General Welfare, how do you argue that? It sounds good for people. Why don’t we just do it? It’s for their welfare.”
We are going to look at this graphically. Article I, Section 8—The Enumerated Powers. In Article I, Section 8 are the listed, enumerated means listed, powers. Ninety-five percent of the powers of Congress are listed in Article I, Section 8 The very first Clause in that section is the General Welfare Clause.
The Congress shall have Power…to provide for the common defence and general welfare…
This general welfare is an interesting concept. That’s really the key word we’re focusing on here in the General Welfare Clause. Whenever we talk or write reports, etc. Let’s say you have a report at school, and you’re assigned to talk about trees. Your main title is trees are good. Then you have these supporting documents. Trees are good for building. Trees are good for agriculture. Trees are good for shade. You have a general concept then you have supporting facts below. That’s how we think, that’s how we talk, that’s how you logically work through things.
Madison kind of said the same thing but much more eloquently. “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” That’s what we just talked about. You have a general phrase then you have your recital of particulars.
Let’s apply that to the General Welfare Clause.
The Congress shall have Power…to provide the common defence and general welfare…
It says general welfare…do whatever you want to do? Or what do they mean by General Welfare? What are they listed? The General Welfare powers are Clauses 2-9 and 17. Those are the supporting particulars. And what does the General Welfare Clause mean? These are your General Welfare powers. These are a specific list of powers you have.
General Welfare Powers
4—Establish rules of Naturalization
7—Establish Post Office & Roads
8—Protect exclusive rights
9—Constitute Inferior Tribunals
17—Control federal lands
When someone says, “We can do that because of the General Welfare powers.” You say, “Oh, I know what the General Welfare powers are. Article I, Section 8, Clauses 2-9 and 17, which one are you referring to? I don’t see that one in there.” It kind of takes the general out of general pretty quick. Those who want to misinterpret the Constitution want to say it’s General Welfare I can do it. Get out of my way. We’re saying no General Welfare means these things, but which one?
If we’re to follow that same logic let’s look at this other word here that shows up. Common defense.
The Congress shall have Power…to provide the common defence and general welfare…
If common defense is there and we follow the same logic, wouldn’t common defense kind of be the general phrase then we have the supporting particulars? Yeah. What are they? Clauses 10-16.
Common Defense Powers
10—Define and punish Piracies and Felonies
12—Raise and support Armies
13—Provide and maintain a Navy
14—Make rules for land and naval forces
15—Call forth the Militia to execute laws, suppress Insurrections and repel Invasions
16—Organize, arm and discipline the Militia
Do those sound like common defense powers? Yes, they are. They are listed that way. That makes sense. That’s why the General Welfare Clause specifically talks about certain specific enumerated powers. It’s not open ended. It’s very closed ended and here’s what they are.
This may be the first time you’ve seen something like this. When I was first exposed to this idea I thought, “Wow, I never thought of this before. So is this just an idea though that someone came up with or is it supported by the Founders? Is it supported by the Constitution?” It’s very much supported. In this case there are dozens of quotes that support this idea. The one that I think is the most clear is by Jefferson. Jefferson says very clearly, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” They can’t just do whatever they want to do, they can only do those things that are listed. Can it be any more clear? He’s saying exactly what the Constitution means. If it’s not given then you don’t have it. The power has to be given or else you don’t possess it.
We can compare and contrast that to the Attorney General during FDR’s time. His name was Francis Biddle. He says this, “The government of the United States can do anything not specifically prohibited by the Constitution.” Wait a second. That’s the exact opposite. It’s saying as long as the government doesn’t say we can’t then we can. That’s not what the Constitution says. That’s not what Jefferson says. We have these different interpretations. He’s quoting the Constitution it sounds like. He’s an authority. He’s the Attorney General for heaven sakes. He’s the supreme attorney of the land. He’s saying we can do it as long as they don’t prohibit it. How do you rationalize this? How do you justify these two concepts? You do what you always should do. You should always turn to the actual words that are in the Constitution. Let’s turn to them. Let’s go to the Tenth Amendment. What does the Tenth Amendment say? It says very clearly. “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.” Quite simply, once again, if the power is not given, the power isn’t delegated in the United States then it’s reserved. It’s not there. You don’t own it. It’s reserved to the states or to the people. Pretty interesting. Does that make sense? That’s how it works. That’s the General Welfare Clause. The answers are always in the Constitution. That’s what I’m trying to propose and solidify in our minds. If we have questions that something’s not clear, the Founders weren’t just guessing or giving it their best shot. They were very thorough. The Constitution has the solutions.
Excuse #3 in an interesting one. It’s called the Necessary and Proper Clause Article I, Section 8, Clause 18. “The Congress shall have Power to…make all Laws which shall be necessary and proper…” Here I am. I’m the one who just got done saying the answers are in the Constitution. The words are actually there. These words say necessary and proper. Isn’t necessary and proper kind of subjective? Doesn’t it kind of depend? What you think is necessary and proper and what I think is necessary and proper may differ from some politicians in Washington, D.C. I’m guessing it would. Their definition of necessary and proper is going to be different from what we think. If I’m advocating the actual words of the Constitution I can’t be a hypocrite and choose which words I like better. What do we do with this necessary and proper? If we’re going to be fair we have to say it just depends. Necessary and proper depends. What does that sound like? Does that sound like a “Few and Defined” power or a “Boundless Field of Power?” If anything were a blank check it’s that. I think it’s necessary and proper therefore I can do it.
How do we resolve this? What do we do? Here are the actual words of the Constitution. Remember, what do I advocate? We have to look at the Constitution. Let’s read the next seven words in the Constitution and see what they’re talking about. The next seven words say this. “The Congress shall have Power to…make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers…” For carrying into execution the foregoing Powers. What does that mean? It means a lot, but it means a lot more if we can look at it graphically. What happens when we look at it graphically? Here’s Article I, Section 8, remember Clause 1 is the General Welfare Clause. We have our General Welfare powers. You have your Common Defense powers. Clause 18 is this Necessary and Proper Clause we’re talking about.
Article I, Section 8—The Enumerated Powers
The Congress shall have Power…to provide for
the common defence and general welfare…
General Welfare Powers Common Defense Powers
2—Borrow Money 10—Define and punish Piracies and Felonies
3—Regulate Commerce 11—Declare war
4—Establish rules of Naturalization 12—Raise and support Armies
5—Coin money 13—Provide and maintain a Navy
6—Punish counterfeiting 14—Make rules for land and naval forces
7—Establish Post Offices & Roads 15—Call forth the Militia to execute laws,
8—Protect exclusive rights suppress Insurrections and repel Invasions
9—Constitute Inferior Tribunals 16—Organize, arm and discipline the Militia
17—Control federal lands
18—make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers
Which powers? The foregoing ones. The ones that are listed right there. It’s not necessary and proper do whatever you want to do. It’s necessary and proper to carry out the foregoing powers. As an example: Article I, Section 8, Clause 5. Congress has the power to coin money. Does Congress have the ability to build a mint? Does it say in there they can build a mint? It doesn’t specifically list that, does it? Is it necessary and proper? In order to coin money do you have to have a mint? Yes. So, can they build a mint? You bet. What about hiring employees to run that mint? That’s an implied power isn’t it? It’s necessary and proper in order to coin money you have to have employees to run the mint. Are there implied powers in the Constitution? Yes there are implied powers in the Constitution. They are restricted by are they necessary and proper to carrying into execution the foregoing powers, those listed ones.
I like to think of Article I, Section 8, like I said it’s 95% of all the Congressional powers, like a sandwich. On the top you have the top piece of bread which is the General Welfare Clause. On the bottom, the bottom piece of bread which is the Necessary and Proper Clause. Then all the meat in the middle. That’s what they can do. (Refer to above chart) It’s restrained by the General Welfare and the Necessary and Proper Clause. I think it’s fascinating. It’s important, it’s not just interesting it’s absolutely important to understand. What do those words mean? What do those clauses mean and how do they apply? That’s how they apply. The Constitution is a list of prohibitions on government. Not an open book or an blank check.
Moving on to Excuse #4 for Unlimited Power, this is the Interstate Commerce Clause. Article I, Section 8, Clause 3. “The Congress shall have power to regulate commerce…among the several States…” I’ll tell you about a famous Supreme Court case called Wickard vs. Filburn. In 1942 the federal government said we’re going to help these farmers so the price of their crops don’t get way out of whack, and we’re going to have price controls therefore you can only grow so much wheat and corn, etc. They put these regulations on the farmers. There was a farmer who grew wheat a little bit of wheat on his land, and he used that wheat to feed his family and his cows. The federal government came in and said we’re going to go after you. He said, “Why? What did I violate?” They said you violated the Interstate Commerce Clause. He said, “Interstate Commerce Clause? I’m not involved in interstate commerce. I use this food to feed my family and my own cows. It has nothing to do with interstate, much less intrastate in any type of commerce. I wasn’t involved in commerce.” They said oh yeah you were. He said, “Wow! Ok, well, let’s take this to the Supreme Court.” So he gets to the Supreme Court and guess who wins? The government. They argued, the fact that you hadn’t participated in interstate commerce, but may have, would have affected interstate commerce. So your lack of participation in interstate commerce affected interstate commerce and therefore we can prosecute you.
We’ve already gone through this. You’re going to have the answer right away. Does that sound like a “Few and Defined” power or “Boundless Field of Power?” A Boundless field of power, because with that same logic can you and I grow a garden? Well, no because it could affect interstate commerce. What if we eat cucumbers out of the garden instead of buy it on the open market? We’re affecting interstate commerce. Have you guys ever had children that eat things that participate in Congress? That require buying and selling? Well we can control how many kids you have too. If you look at the illogical extension of this idea and it’s a boundless field of power quite simply.
Let’s look at what the Constitution says about the Interstate Commerce Clause that helps us understand it’s very restricted, not just this open ended thing. “The Congress shall have Power to regulate Commerce…among the several States…” The key word here is regulate. To keep regular. If you understood the historical context behind the Interstate Commerce Clause, states were killing each other over this issue. They were fighting and killing each other over, “Look, if you’re going to cross my land then I’m going to charge you 50% duties.” And, “If you’re going to do…” Back and forth and actually shedding blood over this issue and fighting over it. Congress in their wisdom said, “We’re not going to leave this interstate commerce issue to be decided by the states because they’re fighting over it. We’re going to move this one step further.” The idea of federalism. Give the power to the proper level of government. Don’t leave it in the states. They’re destroying each other. Put it at the Congressional level and Congress can decide and be in charge of regulating and keeping regular the free flow of goods, so states stop treating each other like enemies and start treating each other like friends.
There’s a lot to be said and theorized about this Interstate Commerce Clause. A lot of different ideas. What we want to do is get into the Constitution. Article I, Section 8, Clause 3 elaborates, but Article I, Section 9, Clauses 5-6 also gives us more information. “No tax or duty shall be laid on Articles exported from any State…” It also goes on to say, “nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” That’s exactly what we’re talking about. You get this idea and start to understand the Interstate Commerce Clause is about the shipping that happened. It’s about the dock to dock stuff that happens in commerce. It’s not about commerce that happens in each state. It’s about the interstate, the interactions. So, obviously, we want to give that power to Congress to be in charge of that instead of to the states to continue to battle and kill each other over this.
Excuse #5 for the Unlimited Power is Treaty Law. Article VI again. We talked about Article VI with the Supremacy Clause. “This Constitution,…and all Treaties made, or which shall be made,_____________________ shall be the supreme Law of the Land.” You guys are wise enough by by now to see that big blank as the big issue. What’s that blank, that’s what I want to know. The challenge is when you get to talking about treaties, a lot of times we just read simply and say, “Look treaties are the supreme law of the land. That’s what Article VI says.” But is that what Article VI says? If the treaty and the Constitution come into conflict with each other, what wins? Does the treaty win or does the Constitution? The Constitution wins. Otherwise instead of being a “Few and Defined” power it’s a “Boundless Field of Power.” We’re just going to use this treaty to do whatever we want to. To go outside the bounds of the Constitution.
Let’s look at the actual words in Article VI. It clarifies that blank we had before. “This Constitution,…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 main question becomes, what does this mean? What does under the authority of the United States mean? Remember what we talked about earlier? What does the United States do? They do all the external things. They’re in charge of the external duties. A treaty makes sense. We’re going to decide between nations how we are going to treat each other. A treaty is all about one group of nations and another group of nations or a single nation deciding how they’re going to treat each other. How are they going to meet in the middle? It’s not about a group of nations saying, “Hey within your country we’re going to tell you what to do.” That’s not what a treaty is for. It’s for the external and where they meet together in the middle. What are the rules that define what we do inside our country? Those are called laws. Our Constitution clearly stipulates that Congress makes our laws, not an international bureaucracy. Not the UN. That’s where you get to understanding when you look at the actual words of the Constitution. It has to be made under the authority of the United States. If the United States doesn’t have the authority, the federal government doesn’t have the authority to do certain things, then they can’t use the treaty law to do those things that they can’t do themselves. That only makes sense. That would trump the Constitution. Essentially if we can do whatever we want to with the treaty, then why have a Constitution? You can just do whatever you want to with a treaty. Just get some people on this international board to agree to do something and make all member signatories of the treaty do that.
Moving on here. At this point a lot of people say, “You know you’re taking this Constitution thing way too literally. Give me a break. We have to a little bit of flexibility, and it has to change with the times. It’s living and breathing, we’ve heard that before, right?” I say yes the Constitution can change. It can adapt. Guess where we look to find out how to change it and how to have it adapt? We look to the Constitution. That’s what Article V is all about. How do you change the Constitution? The word amend actually means change. It’s the Amendment process. Article V is the Amendment process.
Washington put it this way. He said, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government…” We have that right. We’re self governing. We can establish our Constitution. He goes on to say, “But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” What is that explicit and authentic act? It is the Amendment process. The Amendment process is 2/3 of the House, 2/3 of the Senate, and an even higher bar, 3/4 of the states have to agree to change something. Is that a slow process or a fast process? It’s very slow and intentionally so. We’re changing the supreme law of our land. You don’t just change it on a whim. You have to think through this and make sure you’re taking all unintended consequences into account. All different ideas and thoughts. That’s why we have the House and the Senate and the states debate this and make sure they really want to do this. That’s how we make changes.
Rewinding back just a little bit, you don’t change the Constitution with a treaty. You change the Constitution with an Amendment. The bar is much higher, it requires 2/3 of the House, 2/3 of the Senate, and 3/4 of the states whereas the treaty is just 2/3 of the Senators present. You may not even have a full Senate there, and then the President’s signature. That’s not their job. Their job is that only the people can change the Constitution through the Amendment process.
Acting on Undelegated Powers & Ignoring Delegated Powers
We talked about where is the Constitutional power for government to do these certain things? Where is their power to do foreign aid, or housing, education, transportation, energy, wilderness areas, wildlife, healthcare? If you’re having a hard time finding it it’s because it’s not there. It’s not in Article I, Section 8. They don’t have this power. Are some of these good things? Sure. It’s great. Don’t we want to help people? Don’t we want to help citizens of African nations who are starving and send them foreign aid? Yeah. That’s a good thing. Is there a difference between things that are good and things that are right? Yes. Once again, guess where we’re going to find the difference? In the Constitution. It’s not going to tell us what’s good. That doesn’t matter. It’s going to tell us what’s right. What’s within the proper role of government. What is right.
Foreign aid for example. At this point government forces this out of your pocket in the form of taxes. They send it to a beaurocracy. The beaurocracy takes their cut, then they send it to this African government who takes it all and uses it for their political objectives. How should foreign aid work? We should choose to take that money out of our pocket, we should choose which organization to give our money to, then hold their feet to the fire to make sure that money, my money is used for the reason I gave it to them. That’s how it should work. You can see why when you start to do things, even things that are good, you can see the bar here that has to be hurdled, isn’t just the fact that it’s good. It’s the fact that it’s right. When you start to give good powers to government, they can abuse those powers. Only let them do those things that are right.
Daniel Webster said it this way. “It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions…” Just because they have good intentions doesn’t mean government should do it. He goes on to say, “There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”
This is one of the more interesting quotes. “Most of the major ills of the world have been caused by well-meaning people who ignored the principle of individual freedom, except as applied to themselves…” Individual freedom for me, not you. “Except as applied to themselves, and who were obsessed with fanatical zeal to improve the lot of mankind-in-the-mass through some pet formula of their own…The harm done by ordinary criminals, murderers, gangsters, and thieves is negligible in comparison with the agony inflicted upon human beings by the professional ‘DO-GOODERS’, who attempt to set themselves up as gods on earth and who would ruthlessly force their views on all others with the abiding assurance that the end justifies the means.” Henry G. Weaver.
I’ve got this great idea, it eliminates your individual freedom and it we may have to kill people in your village and we may have to forcefully remove you, but trust me, it’s good. It’s a good plan. It’s for everyone. I’m using my freedom to make this plan come to pass. Who are the professional “do-gooders?” Who are those who are setting themselves up as gods on earth? The Hitlers, the Stalins, the Lenins, who have killed over 100 million people. Not in wars, but in simple tyranny. Despotism over their own people. We look at this and say it’s not about good intentions, that’s not the standard. The Constitutional condition is that it be right. That it be the enumerated power that they can use. Otherwise when you cross and you violate principles you will have negative consequences.
We just talked about where is the Constitutional duty to do these things? Now we’re going to look on the opposite side of that same coin. What about the Constitutional duties they are required to comply with?
They are ignoring their Constitutional duty to…
Declare War (Art. I, Sec. 8, Cl. 11) When is the last time Congress declared war? World War II. When is the last time we definitively won a war? World War II. That’s how it works. When Congress declares it that means the people in the states are willing to give their blood and their treasure to this cause. Then we win. Have we been in wars ever since? Yeah, that’s the problem. We continue to be in wars, but never since 1945 has Congress declared war. You can see the negative consequences of that.
What about repel invasion? (Art. IV, Sec. 4, Cl. 1 ) If over 12 million illegal immigrants within the borders of our nation is not an invasion, what is? They’re ignoring their duty to repel invasion. They say we’re not going to enforce the immigraiton laws. We’re not going to hold secure the border. That’s a challenge. That’s their job, that’s what they’re supposed to do. They can’t just not choose to do it.
Raise Armies (Art. I, Sec. 8, Cl. 12) Raise, I have underlined there as opposed to a standing army. According to Article I, Section 8, Clause 12 it says Congress shall have power to raise and support armies, but no appropriation of money to that use shall be for a term longer than two years. They can raise an army, but not have a standing army. They Founders were very nervous about standing armies because historically standing armies have always turned on their own people. What happens after two years? Is that just kind of a random number they threw out in the Constitution from Clause 12? No, what happens every two years in America? The people choose their representatives. The representatives are the ones who are in charge of funding, appropriating, and raising and supporting armies. The people say we don’t want this to happen, don’t keep doing this. They can bring back the representatives who are doing that and rehire new ones to see that their will be effectuated and brought to pass.
Coin Money (Art. 1, Sec. 8, Cl. 5) We as a people have the right to protect our property. The monetary system is a way to protect our property. We’ve delegated the authority and the power to coin money, to make this monetary system work, to our elected representatives. They’re supposed to coin money, but what have they done? They’ve taken that delegated power we gave to them and said, “Well I’m sure they’ll be fine if we give it to someone else.” They’ve given it to this private entity called the Federal Reserve. It’s just a bunch of private bankers. “Oh by the way, that coining money, that’s really a hassle. Let’s print money, it’s way easier.” Is that a problem? Yeah, it’s a huge problem, because we delegated to them the authority to coin money and they said we’re going to give the authority to print paper money to a private group. That’s completely outside the bounds of what power we gave them. When you delegate a power to someone that person can’t say, “Oh I’m sure it’ll be fine if I just give it to somebody else.” No. That’s a violation of our rights and what we’ve given them.
Organize State Militias (Art. I, Sec. 8, Cl. 16) This clearly states to execute the laws of the Union, suppress insurrections and repel invasions. Do those sound like internal duties or external duties? They’re internal. When we talk about execute the laws of the Union that’s domestic. Suppress insurrections. That’s the very point of insurrection, it’s domestic unrest. And repel invasions. But now we have this new and improved version of the militia called the National Guard. How many of you know National Guardsmen who are fighting and dying in international wars? Those are external affairs. We have a whole discussion about this in my other presentations. The state militias are supposed to be organized to do these internal duties and they’re not. They’re not even organized at all.
Impeach Judges (Art. 1, Sec. 3, Cl. 6) In the history of America there have been eight federal officials that have been impeached and removed from office. One in particular that I’m aware of is a federal judge in Florida who allegedly took a bribe. He took that bribe and they impeached him and removed him from office and now he finds himself I think for the last fifteen years or so as the U.S. Congressman from that district in Florida. Isn’t that interesting? We get what we deserve, don’t we? If that’s what the people value, that’s a representation of their values, then that’s what they get. That’s a major challenge I would say.
Lastly, their Constitutional duty to UPHOLD THEIR OATH OF OFFICE! An oath is an important thing. It’s not just a whimsical, “Ah no big deal, I’ll just take this oath then I get into office.” An oath is a promise before God and men. I’ve made an oath. I made an oath before God and men. It’s a marriage oath. It’s 100% fidelity to my wife. If someone were to say, “I’m at least 80%. That’s pretty good.” Would my wife say that’s pretty good? No. When you make an oath to uphold and defend the Constitution it’s an oath of fidelity. 100%. Your job is to uphold that oath you made. Your fidelity needs to be the Constitution. Speaking of oaths, let’s look at it.
Oath of Office?
I do solemnly swear (or affirm) that I will be subject and subservient to the Federal Government and that I will support and defend all laws passed by Congress, the Supreme Court, or the President of the United States, never questioning their authority to legislate in all matters, whatsoever.
Does that sound like the oath? That may be what they’re thinking, but that’s not the oath. This is the oath.
Oath of Office
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic…” Domestic? Really? Were there a bunch of conspiracy theorists in the Founding Fathers? No, we had a bunch of historians. Domestic. The story of history has always been remember what we talked about earlier. It’s always going to be not external deterioration, it’s going to be internal. Deterioration is when we don’t value what we have. To support and defend the Constitution against all enemies foreign and domestic. It’s critical. That’s their loyalty. That’s what they need to do.