Kidogo's World
Many laws on the books today are repugnant to the Constitution. Constitutionally protected rights are daily violated. Laws and regulations fly in the face of the Ninth and Tenth Amendments, if not the First, Second, Fourth, and Fifth. Cases in point: children are considered sick and given remedial education if they are discovered to love God and country; gun control laws disarm the victim, while the criminal remains armed; taxpayers are forced to provide funding for practices forbidden by their religion; all recirculated cash (it might be someone's life savings) is now contaminated with cocaine (apparently the sorting machines are never cleaned) and is legally confiscated from any suitcase sniffed by a drug dog, and not returned even if no drugs are found and no charge is made.
The government is out of control. How did this come to be?
What Happened that Day
in 1937?* * * * * *
Where It Started
THE CONSTITUTION is the instrument by which the federal government was created. The intent was that the government be severely limited in its authority. Grants of power were few and specific. Yet virtually nothing is now ruled unconstitutional in the courts! -- unless it is "politically incorrect."
And so it has been since 1937.
It started more than 200 years ago as a controversy between Alexander Hamilton on one side and Thomas Jefferson and James Madison on the other. At issue was the first clause of Article I, Section 8, of the Constitution:
The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;...
Hamilton claimed the "general Welfare" clause was a grant of power.
The disagreement was about the intent of the words "general Welfare." Alexander Hamilton claimed this was a grant of power -- power to do anything Congress might deem would promote any Welfare (so long as it was for everyone and not for just a select group or locality).
This clause had raised much alarm among the States.
Though Hamilton was one of the authors of the Federalist Papers (the series of essays published by Hamilton, Madison, and Jay, to gain favor of the States to ratify the Constitution), he was significantly silent on this subject until after ratification. Had he expounded his view in that forum, ratification might have failed, because this clause had raised much alarm among the States. Madison made clear in Federalist Papers #41 that the term "general Welfare" could never rationally be interpreted as a grant of power. It was on this assurance that the States did ratify. But no fewer than six States accompanied their ratification with a resolution making an express construction that all powers not specifically granted were reserved. Among the amendments submitted by the First Congress was the one that became the Tenth Amendment:
The Tenth Amendment was intended to lay the issue to rest.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.
This amendment was immediately ratified, and its purpose was to lay that issue to rest. Congressman Samuel Walker McCall thought it had laid it to rest, even as late as 1907 when he addressed the Jamestown Exposition ...
The Constitution recognizes that all power resides in the people.It ... deals a death-blow to the theory that our Government has about it ... any power that is not contained in the express grant...
To my mind, therefore, the striking thing in the American Constitution, which differentiates it from the previously formed constitutions of all other nations, is the manner in which it imposed limitations upon government, recognizing that all power originally resided in the people, and that no government had any species of authority over them which they did not expressly grant.
* * * * * *
Prophetic Insight and 20/20 Hindsight
JAMES MADISON and Thomas Jefferson took the opposite view to that of Hamilton, and their prophetic insight is confirmed by our 20/20 hindsight. Madison had taken copious notes of the Convention. He stressed in the Federalist Papers that the powers delegated to the federal government were not broad, but few and defined -- enumerated in Article I, Section 8, in the clauses following the welfare clause -- and that "general Welfare" was intended to be a limitation on the taxing power.
Jefferson gave clear warning that Hamilton's construction (interpretation) would render meaningless the Constitution, the primary purpose of which was to restrain the government from mischief. In a Draft Declaration and Protest of the Commonwealth of Virginia, on the Principles of the Constitution ..., in 1825, Jefferson wrote:
This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others.
In a letter to C. Wilson Nicolas he wrote in September of 1803:
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.
In a letter to William Johnson he wrote in June of 1823:
The States supposed that by their Tenth Amendment, they had secured themselves against constructive powers ...
* * * * * *
What happened in 1937?
FDR espoused Hamilton's view, effecting social and economic changes.THE HAMILTONIAN forces refused to accept the clear intent of the Tenth Amendment. They made many inroads through the years, and they scored big with the Federal Reserve Act in 1913. The Crash of '29, followed by the Great Depression, set the stage for FDR. By the end of 1933 (his first year in office) more than 700 Acts, proposed by him and his socialist friends, had been rubber-stamped by a servile Congress. He boasted to Congress in January of 1934 that he had effected "a permanent re-adjustment of many of our social and economic arrangements"... and again to Congress one year later he boasted of "a new order of things." What was his justification for these actions that destroyed our constitutional guarantees? The good of society Ñ using the misconstrued welfare clause.
The Supreme Court found for Hamilton's view.In 1936 the Supreme Court conspired with him in his mischief in United States v. Butler, 297 U.S. 1 (1936), finding in favor of Hamilton's reading of the welfare clause. In 1937 the constitutionality of the Social Security Act was tested in two cases. In Helvering v. Davis, 301 U.S. 619 (1937), the Supreme Court took the mischief a step further -- removing a vital check -- with:
The discretion of Congress is not even reviewable by the courts.The line must still be drawn between one welfare and another, between particular and general. ... [But] the discretion ... is not confided to the courts. The discretion belongs to Congress ...
No bells tolled; no flags flew at half mast; but that day in 1937 the lid was nailed shut on the coffin of the Constitution.
* * * * * *
Can it be resurrected?
CURRENTLY THERE IS a glut of amendments being pushed to be proposed by Congress. For the most part their purpose is to correct a government gone awry. But most would serve only to patch with Scotch tape, chewing gum, and bailing wire, where full restoration is the only cure.
One amendment only -- not to change, but simply to clarify and restore the intended meaning to the welfare clause, and consequently to the Tenth Amendment by: forbidding the welfare clause to be construed as a grant of power, providing for disabling within a defined period all previous legislation relying upon such construction, and requiring for all future legislation a preamble citing constitutional authority. This would cure much of what ails our nation and render most of the other proposed amendments unnecessary.
The question is: How can Congressmen be persuaded to propose such an amendment?
Congressmen respond to pressure from the people.Of course, many, if not most, of those in Congress enjoy the status quo. But a ground swell at the grass-roots level -- a blitz of letters to Congressmen -- could bring about the desired result. They do like to get on the popular side of popular issues. But perhaps we would be surprised at how many would be gladdened by a change in the rules that would remove the temptations and make possible what is now impossible: to be a responsible legislator. If nobody could come home with pork, there would be no more competition for bringing it home, etc. Also, presumably they all love their own State and want the best for it. This amendment would restore power and authority, as well as money, to the States -- and to the people.
The States could regain power, authority, and money lost to the misconstrued Welfare Clause.When Governors and State Legislators realize how much power and authority they have lost to the misinterpretation of the general welfare clause -- and that they could regain it with such an amendment -- they should pressure their U.S. Senators to propose it. The Senators, after all, even though now elected by the people statewide, are supposed to represent the State governments. Which State government -- to say nothing of County and Municipal governments -- would not be relieved to be free from federal mandates that are sending many into bankruptcy? Just imagine your own state and local governments -- the governments more accountable to the people -- having full authority of administration over welfare, public education, health care, natural resources, crime, etc., and pertinent expenditure of moneys.
Eighty percent of the money paid by taxpayers would no longer be siphoned off in administration in Washington for programs more efficiently administered locally -- if not privately (by such as the Salvation Army). The States could thrive with a fraction of the taxation now collected by the federal government -- even providing adequately for the needs of such as the mentally ill. Any State which overtaxed or abused its citizens would lose to the competition; business and industry would simply move to neighboring States.
As for the taxpayers, they could only win.
An appropriate question to ask candidates for Congress [or state legislatures] would be:
Would you propose [or ratify] an amendment to the Constitution, which would clarify the intent of the general welfare clause by denying this clause to be a grant of power?
* * * * * *
Holes in Our Boat
The Constitution is not a perfect document. A few well chosen amendments to plug several holes in our boat would not be amiss.
- Hamilton's interpretation of the welfare clause, made official in 1937, renders meaningless the Constitution -- the document that was intended to regulate the government and to protect our liberties. We need a clarification of the intended meaning of "Welfare."
- A 1920 Supreme Court decision is being used to surrender our national sovereignty to foreign entities not accountable to duly constituted officers of our government. Though Article VI is quite clear to a literate person, we apparently need clarification that treaties cannot supersede the Constitution.
- Judicial interpretation of the Constitution is now taking precedence over the Constitution itself, making the judiciary to be the supreme lawmaker -- in total contradiction to the balance of power mandated by the Constitution. We were warned by Jefferson of the tyranny that is resulting. There needs to be an amendment for judicial reform.
One of the Framers (I think it was John Adams -- somebody correct me?) said that the Constitution would be suitable for a moral people; but for an amoral people it would be wholly inadequate. We need to have our moral fiber restored.
A political party cannot by itself restore the moral fiber of the nation. However, returning American jurisprudence to its biblical premises and the government to its Constitutional boundaries (as envisioned by the Framers) will go a long way toward reversing the dissolution now taking place. As Howard Phillips has said, there are only three political parties: the one that thinks the government is sovereign, the Republicrats et al; the one that thinks the people are sovereign, the Libertarians; and the one which acknowledges the sovereignty of God, the US Taxpayers Party -- unique today, but in company with the Founding Fathers.
Let us raise a standard to which the wise and honest can repair. The event is in the hand of God.
-- George Washington at the 1787 Constitutional ConventionHappy is that people, whose God is the Lord.
-- Psalm 144:15
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Copyright 1996 Jean Westphal
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Last revised: 10 June 2000.