Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, offers a lesson on the general Welfare clause of the United States Constitution. He discusses the original meaning of the words themselves, the meaning of general welfare in the preamble, the original meaning and understanding of the clause, the taxing clause, the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, court cases which have turned its meaning upside down, practical reasons for a limiting view of the clause and the Constitution as a whole, and more.

Mentioned in this Show

Federalist #41

United States v Butler

Korematsu v. United States

More from Rob Natelson:

Are Campaign Finance Laws Constitutional?

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

Recently, the U.S. Speaker of the House, Nancy Pelosi, responding to a reporter’s question of whether the Constitution gave Congress the authority to enact individual health insurance mandate, kept repeating, “Are you serious?”

Now, let’s give Speaker Pelosi the benefit of the doubt and attribute her impolite reply to simple disbelief. In fact, from her point of view her authority is unchallenged per a September press release, and many others such as Politico’s Erwin Chemerinsky and even the contemporary Supreme Court agree. From her press release, Pelosi states:

“The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.“

The Speaker is certainly correct that federal Congress has certainly legislated on “many aspects of American life.”  In fact, there is a lot more at stake with the Commerce Clause than “just” our health care — the entire authority for economic central planning rests on this single clause. I strongly disagree with Pelosi that the Constitution allows Congress broad power in this respect. First, the exact language from my job description in Powers of Congress, Article I, Section 8, Clause 3:

“The Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Pelosi believes that she has the power to “regulate Commerce… among the several States” and I suggest that in blunt language she instead literally means to “control the economy… of the States.”  Pelosi and her ilk accomplish this by confusing the modern meanings with the legal meaning and contemporary context of the founders.

Regulation, in today’s dictionaries, means “a governmental order having the force of law.” However, this is not the historical definition.  The founders believed “regulate” to literally mean ‘to make more regular’ or, per Black’s Law Dictionary at the time, “a rule or order prescribed for management or government; a regulating principle; a precept.” In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties. This is most clearly seen in Article 2 of the Kentucky Resolutions of 1798 written by Thomas Jefferson.

Next, although the Federalist Papers are not legal documents, they do serve as public demonstrations of the founders’ intentions as they were part of a series of essays published to explain the Constitution to the public before its’ ratification. James Madison in Federalist #42 wrote:

“The defect[s] of power in the existing Confederacy to regulate the commerce between its several members… [has] been clearly pointed out by experience… It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity… it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade… The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls.”

A modern example of “unregulated” Commerce by the founder’s meaning would be manufacturing companies in the interior of India, which has 28 states. As goods move by rail or truck from interior states to a seaport in a coastal state, each state assesses its own tariff at its border which rightly leads to “animosities” and a “less convenient channel” for foreign trade. But what did the founders mean by ‘Commerce’?

Within the last century, several American lawyers have claimed the founder’s definition of commerce was “all gainful activities” or “all human interactions.” This has been taken by the leviathan federal Government as authority to control not just health care, but the minimum wage, manufacturing, agriculture, the mining, oil and lumber industries, possession of firearms, land use, criminal law such as federal drug laws, and environmental protection, in most cases usurping states’ rights per the 10th Amendment and in some cases even inventing jurisdictions.

Fortunately, Dr. Robert Natelson wrote a well-documented paper “The Legal Meaning of ‘Commerce’ in the Commerce Clause” in 1996. After examining thousands of instances of ‘Commerce’ used in contemporary legal documents, Natelson concluded that commerce simply and exclusively meant “exchange” or “traffic” and its associated activities, such as navigation, to the founders. In simple English, commerce benefits agriculture or manufacturing, but does not include either agriculture or manufacturing. Furthermore, Natelson notes:

“If we read “Commerce among the several States” to mean “all gainful economic activity among the several States,” then the clauses by which Congress is empowered to regulate commerce with “foreign Nations” and the “Indian Tribes” become either largely redundant or nonsensical. Even more seriously, if the Commerce Clause grants Congress power to regulate all economic activities, then some of Congress’ other economic powers become surplus.”

So, if the Commerce Clause gave Congress economic central planning authority, many of the powers listed in the Constitutionwould be redundant. The powers of Congress over postal roads and offices, dockyards, intellectual property, and more would be repetitive if the power was already enumerated in the Commerce Clause. During the Federalist Papers debate, one would have expected the Commerce Clause to have been hotly debated by the anti-Federalists if it had been truly intended to give unlimited power over all gainful economic activities to the federal government. Federalist #42 would not have been able to dodge such a huge stripping of power from the States. What do we hear from the historical record? Silence, which indicates that this was a non-issue.

Natelson goes into a lot more detail than I have, and it is much easier to shred the other constitutional references given to support government infringement into health care.  Please read my Health Care plank which also links to the Constitution of the USSR (which DOES authorize government involvement in health care) and this great discussion on the “General Welfare” clause.

The “Necessary and Proper” clause is briefly dismissed by the referenced Natelson paper, but more strongly in his other papers. In short, Pelosi and the rest of Congress simply MUST have a constitutional amendment passed before legislating on health care. Their actions in Congress are highly illegal, and is one of many unconstitutional and illegal acts committed against the American people by Congress.  Since no help can be expected from the appointed-for-life Supreme Court, the last defense, really the only defense, is that of We the People ourselves.

So in formal reply to Speaker Pelosi, even the notion of federal government authority over the health care of the American people is completely absurd. My reply is: “Madame Speaker, are YOU serious?”

Jake Towne, “The Champion of the Constitution,” is running for U.S. Congress in Pennsylvania’s 15th District in the 2010 election as a citizen unaffiliated with any political parties.  Jake is a columnist at NolanChart, and also contributes to LibertyMaven and CampaignForLiberty.

A recent article in the New York Times covered the growth of state-level resistance to a future national health care plan. For example, in 2010, voters in Arizona will have a chance to approve a state constitutional amendment that would effectively ban national health care in that state. Legislators in Florida and Michigan have already introduced similar legislation, and potentially, 15 other states will do so in the 2010 legislative session.

But here’s something fundamentally important that NYT writer Monica Davey claims in her article:

…the Constitution’s supremacy clause ordinarily allows federal law to, in essence, trump a state law that conflicts with it…

A best, this is a highly-misleading statement.

There are two main points to make here:

1. The “supremacy clause” does not allow federal law to trump state law in all situations, or even “ordinarily” as Davey claims. It only does so when both laws are in pursuance of a power that has been delegated to the federal government by “We the People.” – in the Constitution.

2. We know that this is the case because Monica’s version of the supremacy clause was actually proposed by leading founders – and rejected. When the Constitution was being drafted, James Madison and others proposed what came to be known as the “Virginia Plan.” A major part of this plan was to give the congress a veto over state laws. It was defeated. That means, in plain English, the founders considered this idea, and said no. And Davey is irrefutably wrong in her claim.

So we know from this short lesson that the supremacy clause did not authorize the power that Davey is claiming. In reality, things are pretty much the other way around. The biggest Constitutional problems that actually exist in this country are those times when the federal government exercises powers not delegated to it by “We the People.” And that happens far more often than not.

Unfortunately, though, not enough people know this important history of the Virginia Plan, and this basic premise of the Constitution, so they’re easily swayed by patently false statements by people like Davey and the New York Times.

This satirical piece first appeared in The American Mercury, 41 (June 1937), 129-36, and was reprinted in condensed form by The Reader’s Digest, 31 (July 1937), 27-29. In order to indicate what reached the widest audience, the condensed version appears here, thanks to LewRockwell.com

The principal cause of the uproar in Washington is a conflict between the swift- moving idealism of the New Deal and the unyielding hunkerousness of the Constitution of 1788. What is needed, obviously, is a wholly new Constitution, drawn up with enough boldness and imagination to cover the whole program of the More Abundant Life, now and hereafter.

That is what I presume to offer here. The Constitution that follows is not my invention, and in more than. one detail I have unhappy doubts of its wisdom. But I believe that it sets forth with reasonable accuracy the plan of government that the More Abundant Life wizards have sought to substitute for the plan of the Fathers. They have themselves argued at one time or another, by word or deed, for everything contained herein:

PREAMBLE

We, the people of the United States, in order to form a more perfect union, establish social justice, draw the fangs of privilege, effect the redistribution of property, remove the burden of liberty from ourselves and our posterity, and insure the continuance of the New Deal, do ordain and establish this Constitution.

ARTICLE I

The Executive

All governmental power of whatever sort shall be vested in a President of the United States. He shall hold office during a series of terms of four years each, and shall take the following oath: “I do solemnly swear that I will (in so far as I deem it feasible and convenient) faithfully execute the office of President of the United States, and will (to the best of my recollection and in the light of experiment and second thought) carry out the pledges made by me during my campaign for election (or such of them as I may select).”

The President shall be commander-in-chief of the Army and Navy, and of the militia, Boy Scouts, C.I.O., People’s Front, and other armed forces of the nation.

The President shall have the power: To lay and collect taxes, and to expend the income of the United States in such manner as he may deem to be to their or his advantage;

To borrow money on the credit of the United States, and to provide for its repayment on such terms as he may fix;

To regulate all commerce with foreign nations, and among the several states, and within them; to license all persons engaged or proposing to engage in business; to regulate their affairs; to limit their profits by proclamation from time to time; and to fix wages, prices and hours of work;

To coin money, regulate the content and value thereof, and of foreign coin, and to amend or repudiate any contract requiring the payment by the United States, or by any private person, of coin of a given weight or fineness;

To repeal or amend, in his discretion, any so-called natural law, including Gresham’s law, the law of diminishing returns, and the law of gravitation.

The President shall be assisted by a Cabinet of eight or more persons, whose duties shall be to make speeches whenever so instructed and to expend the public funds in such manner as to guarantee the President’s continuance in office.

The President may establish such executive agencies as he deems necessary, and clothe them with such powers as he sees fit. No person shall be a member to any such bureau who has had any practical experience of the matters he is appointed to deal with.

One of the members of the Cabinet shall be an Attorney General. It shall be his duty to provide legal opinions certifying to the constitutionality of all measures undertaken by the President, and to gather evidence of the senility of judges.

ARTICLE II

The Legislature

The legislature of the United States shall consist of a Senate and a House of Representatives. Every bill shall be prepared under the direction of the President, and transmitted to the two Houses at his order by their presiding officers. No member shall propose any amendment to a bill without permission in writing from the President or one of his authorized agents. In case any member shall doubt the wisdom of a bill he may apply to the President for light upon it, and thereafter he shall be counted as voting aye. In all cases a majority of members shall be counted as voting aye.

Both Houses may appoint special committees to investigate the business practices, political views, and private lives of any persons known to be inimical to the President; and such committees shall publish at public cost any evidence discovered that appears to be damaging to the persons investigated.

Members of both Houses shall be agents of the President in the distribution of public offices, federal appropriations, and other gratuities in their several states, and shall be rewarded in ratio to their fidelity to his ideals and commands.

ARTICLE III

The Judiciary

The judges of the Supreme Court and of all inferior courts shall be appointed by the President, and shall hold their offices until he determines by proclamation that they have become senile. The number of judges appointed to the Supreme Court shall be prescribed by the President, and may be changed at his discretion. All decisions of the Supreme Court shall be unanimous.

The jurisdiction and powers of all courts shall he determined by the President. No act that he has approved shall be declared unconstitutional by any court.

ARTICLE IV

Bill of Rights

There shall be complete freedom of speech and of the press – subject to such regulations as the President or his agents may from time to time promulgate.

The freedom of communication by radio shall not be abridged; but the President and such persons as he may designate shall have the first call on the time of all stations.

In disputes between capital and labor, all the arbitrators shall be representatives of labor.

Every person whose annual income fans below a minimum to be fixed by the President shall receive from the public funds an amount sufficient to bring it up to that minimum.

No labor union shall be incorporated and no officer or member thereof shall be accountable for loss of life or damage to person or property during a strike.

All powers not delegated herein to the President are reserved to him, to be used at his discretion.

Henry Louis “H. L.” Mencken (September 12, 1880 – January 29, 1956), was an American journalist, essayist, magazine editor, satirist, acerbic critic of American life and culture, and a student of American English. Mencken, known as the “Sage of Baltimore”, is regarded as one of the most influential American writers and prose stylists of the first half of the 20th century. (from Wikipedia)

During the Constitutional Convention, from May to September 1787, delegates from the colonies were to gather together for the express purpose of amending the Articles of Confederation to form a “more perfect union” (NOT a completely different union!). The men that met in Philadelphia, Pennsylvania, were under direct and limited orders from their states to attend the Federal Convention explicitly to preserve the federation and State rights and to correct the errors of the existing federal government for the limited purposes of handling foreign affairs, commerce among the states and common defense.

Yet, during that private and secret convention, there were men who proposed that a national system be established in place of their current federal system, destroying State sovereignty in direct contradiction to their orders. (Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, vol. 1, 2nd ed., [Philadelphia, PA, JB Lippincott, 1891], 121) Of course, the public was not aware of this fact until years after the ratification of the Constitution, when the notes taken in the convention were printed and released to the public.

Indeed, those who proposed such a national system of government (e.g., Alexander Hamilton, John Dickinson and James Madison) would not have the people of the states aware of this proposal for fear of outright rejection of the Constitution and for fear that they would remove their delegates from the convention altogether, giving no chance of success for the ratification of a new Constitution. It was hush-hush for good reason. In fact, Alexander Hamilton was so tactful on the subject that he did not even present his nationalistic notions as a constitutional proposal, but only as his ideas of what America should be. (Ibid., 123) Despite these proposals, in the end, it was a federalist system that prevailed–a union of states and not a union of people, whereby the states retained complete and absolute sovereignty over all matters not delegated to the federal government. The states were indeed co-equal with the federal government. So, what was it about the national system that was rejected during the convention?

The most notable proposal reveals the underlying foundation for all national principles: that is, the national government possesses superior sovereignty to force the states to submit to the laws made by the national government and to negate any State law it deems repugnant to the articles of union. This supreme power was proposed (but rejected) as follows during the Federal Convention: the to-be national government should possess the power to “negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union.” (Ibid., 207) Hamilton, and his like, would have loved it had this national principle of supreme sovereignty been accepted by the delegates. Thankfully, it was not accepted. In fact, as the convention progressed, what became apparent to those who advocated for this national form of government is that their ideas would never be accepted and ratified.

History proves with absolute certainty that a national government and its assuming principles were rejected, not only by the framers of the US Constitution, but also by those who sent delegates to the Federal Convention and who ratified the US Constitution at their State conventions. More important than the limited powers of the federal government, the people of the states rejected the nationalist doctrine that the federal government had the power to negate State laws that it deemed contrary to the Constitution. (John Taylor, New Views of the Constitution of the United States, [Washington DC, 1823], 15).

So, how is it that while the people of the states expressly forbade the federal government from interfering with the internal affairs of the states the federal government can now control nearly every facet of life within the states and the states supposedly can do absolutely nothing about it? Most attorneys who think they know so much about America’s history and the US Constitution would say, “The United States Supreme Court is given the power to say what the Constitution means and that over the years, they have interpreted Congress’ power to reach the internal affairs of a State.” It is the “living Constitution” idea, simultaneously coupled with nationalistic doctrine, which proclaims that the actual meaning of the Constitution can change over time, and that such change is constitutional and does not deny the people their freedom protected under the compact of the Constitution.

Interestingly, the “living Constitution” idea is only used when it promotes a constitutional “construction” that expands and empowers the federal government and neuters the State governments. The “living Constitution” idea (advanced by the British Parliament) in fact is the very notion that caused America’s War for Independence. (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [Boston, MA: Houghton Mifflin Company, 1922], 235, 237)

The ludicrous proposition of a “living Constitution” begs numerous critical questions involving the very foundation of a free society, not the least of which is this: If the meaning of the Constitution can change over time, why did the Constitution’s framers spend nearly five months debating which words should be placed in the Constitution? More than that, why would the framers be so emotionally, mentally, intellectually and intensely involved in the question of what form of government we will have: national or federal?

How can it be that the judiciary branch of the federal government, which is not even politically responsible to the people or the states whatsoever (and only ever so slightly to the other federal branches), has the sole and complete power to say that the states have no power to interpret and comport to the US Constitution as they deem constitutional, when that same power was expressly rejected to the national government during the convention? After all, Hamilton and Madison both admit throughout the federalist papers that the states have complete and absolute sovereignty regarding the powers retained by them and granted to them by the people of each State, just as any foreign nation would. Both Hamilton and Madison admit that the only check on power is another independent power and thus, the only real power that could check federal power was State power. They even expected that the states would use their sovereign and independent power to the point of being the voice and, if necessary, the “ARM” of the people to implement a common defense against the federal government.

Both Hamilton and Madison admit that the federal government can never force the states out of existence and can never strip them of their rights and powers possessed prior to the ratification of the US Constitution, except as delegated to the federal government. They even refer to the states’ right of self-defense in this regard to resist federal tyranny. Was this mere “bait and switch” rhetoric to get the people of the states to ratify what they thought was a pure federal system? How can the states possess the absolute sovereign power to check federal tyranny when they are bound to submit to the federal government’s interpretation of the Constitution? The two positions are necessarily incompatible with each other. To say that you have power, so long as I say you have power is to deny your power altogether.

Quite obviously, in no place does the Constitution grant to the federal government (in any branch) superior sovereignty over the states. Instead, the Constitution requires ALL parties to it (State and federal) to comply with the Constitution, as it is the supreme law of the land. All the framers agreed that federal government and federal law do not equal the “supreme law of the land.” Both the federal government and the federal laws are bound by the terms to which all must comply. Thus, all parties must be watching each other to ensure each is complying with the compact. And as was admitted by even the most ardent nationalist (i.e., Daniel Webster) of America’s earlier history, each party to a COMPACT has the sole right to determine whether the other party has complied with the compact.

But over the years, a political idea contrary to our original federal system was adopted–not through open discussion and consent, but by fraud and force. This position states that whatever the federal judiciary rules equates to the “supreme law of the land” and the states must comply therewith, regardless of whether the federal law usurps the power the states retained under the Constitution. What the nationalists were unable to obtain through honest and open debate during the conventions they have obtained through the erroneously construed “supremacy” clause of the Constitution.

What the federal government was denied through constitutional debate and ratification the nationalists have procured through masquerade, subterfuge and trickery. America has been duped into accepting a national government, not by interpolation, but by deceptive “construction.” If the federal government has the power to usurp its powers without a countermanding power checking its encroachments, where is the genius in our framers’ form of government?

Was this form of government the form that best secured our happiness and freedom? And if our framers in fact bequeathed to us a federal system, whereby the states were co-equal with the federal government in sovereignty and power regarding their powers, then where comes the notion that we now have a national system, whereby the states are mere corporate branches of the federal government? Where were the constitutional debates on that subject? Where was the surrendering of sovereignty by the states, which can only be done through expressed and voluntary consent? Where was the right of the people to establish the form of government most likely to effect their safety and happiness? Do we just accept the fact that our form of government can change over time without express and legal action being taken to effect that change? God forbid!

In 1776, the colonies rejected the European (nationalist) form of government. In the UNITED STATES, the people of the states ardently believed that their freedoms would be best protected if each of their agents (State and federal) possessed equal power to check the other against encroachments of power and freedom. This was the “more perfect union” of the US Constitution. How could the founders have suggested that the US Constitution was a “more perfect union” as a nationalist system, when the nationalist system was the very system they seceded from and rejected? That is nonsense!

Ironically, the very document that was designed to perpetuate these principles of federalism has in fact been de-constructed to destroy those same principles, leaving us with the very form of government that our framers and the Constitution’s ratifiers rejected. In the end, if the people of the states do not once again reject this national form of government and assert and defend the principles of federalism–the principles upon which America was founded–then this supposed federal power of constitutional “construction” will in fact be our freedom’s destruction.

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his blog.

With a faltering economy, multiple wars, and the approaching demise of the dollar’s reserve status, there are more than enough problems to keep politicians in Washington working day and night. In between handing out cash for clunkers and nationalizing healthcare, the administration is busy sending more troops overseas, escalating existing wars, and seeking out excuses to start new wars. Congress is working on “urgent” legislation to address crises like healthcare reform and climate change.

The reforms are so very urgent that legislation must pass swiftly with no time to read the bills even though the new laws wouldn’t take effect for several years! Meanwhile, the Federal Reserve is busy dealing with our dollar crisis by printing up more dollars.

Yes, there certainly is a lot for Washington to do these days. Most, if not all, of what Washington is doing however, is more of what created the problems in the first place. Capitol Hill is filled with politicians running around putting out fires – but with gasoline. The truth is that all these fires keep so many powerful people employed and wealthy that it is not truly in many decision makers’ interests to be very effective problem-solvers.

If Washington ran out of problems, think how many lobbyists would be out of a job, and how many special interest groups would just disband? Sadly, whatever is bad for the greater economy is good for the economy and job market in DC.

Of course, no form of government, not even one that respected its Constitutional restraints, would magically create a problem-free society. The question is: how should a society deal with its problems? The form of government that our founders envisioned, in which the federal government was strictly constrained by the Constitution, allows private citizens and communities to solve their own problems.

The role of the government should be to protect contracts, punish fraud and violence through appropriate laws, law enforcement and the courts. Not a whole lot of laws or bureaucrats are really necessary to work on just that. Instead, new laws are constantly needed to fix the problems that previous unconstitutional laws created.

We have ended up with an incomprehensible maze of laws and regulations that severely constrains the people and expands the government – the exact opposite of what our founders intended.

This is all because the Constitution is treated like a suggestion manual instead of the supreme law of the land. Under the Constitution, politicians’ hands are supposed to be tied in most of the areas they involve themselves in today. But somewhere along the line, politicians stepped out of Constitutional bounds and started pretending to solve our problems for us.

All we have to show for it is more problems.

Today, Washington politicians can busily “solve” one problem, knowing that unintended consequences from that “solution” will keep them and their friends all very busy tomorrow. The people are ultimately left suffocating under the burden of Washington’s helping hands. It is coming to a point where our economy, our dollar, and indeed, the rest of the world have had about all the help from Washington that they can stand.

The United States is headed the way of Rome and the Soviet Union, for the same reasons, unless we reverse the trend.

I continue to hope that enough Americans will realize that the true strength of our country doesn’t come from Washington, but rather the limitations placed on government in the Constitution. We must resolve to reverse the destructive course that we are on and then never again let big government problem-solving take over our lives and our country.

Ron Paul is a Republican member of Congress from Texas

by Josh Eboch

Anyone who desires a constitutionally limited federal government should remember and celebrate that its limitations would necessarily cut both ways. Because if federal policy actually adhered to the letter of the Constitution, no single ideological camp could wield sufficient power to impose a set of beliefs on the entire country.

Which was exactly the point of our federalist system, and of the 10th Amendment. Beyond specific, enumerated federal powers, an infinite number of issues were intentionally left to the authority of the people through their state governments. And it is to the states that liberals, conservatives, and even libertarians must address all questions extending beyond the constitutional purview of federal authority.

Click Here to Read the Full Article

Anyone who desires a constitutionally limited federal government should remember and celebrate that its limitations would necessarily cut both ways. Because if federal policy actually adhered to the letter of the Constitution, no single ideological camp could wield sufficient power to impose a set of beliefs on the entire country.

Which was exactly the point of our federalist system, and of the 10th Amendment. Beyond specific, enumerated federal powers, an infinite number of issues were intentionally left to the authority of the people through their state governments. And it is to the states that liberals, conservatives, and even libertarians must address all questions extending beyond the constitutional purview of federal authority.

Questions involving but not limited to:

Health Care: If the framers had intended the federal government to establish and manage hospitals and Alms Houses within the states, they would no doubt have given it the explicit authority to do so. To misconstrue the general Welfare Clause in such a way as to conjure that authority out of thin air is to commit a blatant act of intellectual dishonesty.

In fact, regarding those words, “general welfare,” James Madison himself said: “To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

This also includes Medicare and Social Security, both of which are preparing to default on a massive scale thanks to the sort of bureaucratic mismanagement and fiscal shell games at which governments excel.

Of course, nowhere does the Constitution say that states cannot establish and bankrupt their own socialized medicine or retirement schemes. See: Massachusetts and California.

Drugs: George Washington and Thomas Jefferson were hemp farmers, and drugs themselves have existed in various forms for thousands of years. They were certainly not unknown to the framers of our national government. Yet, excepting the (repealed) 18th Amendment, there is no mention of drugs or prohibition in the Constitution.

It is thanks to an expansive and unlimited interpretation of the Commerce Clause that the federal government now claims the power to ban certain substances. But in 1787, the Commerce Clause was worded to make trade regular between the states by preventing protectionist tariffs, not to give Congress the power to impose national standards of morality on the marketplace.

In recent years, some states have tried to reassert their authority on this issue, but a senselessly violent war continues to be waged by the federal government against the personal purchasing decisions of people in every state.

Marriage: The positive impact of creating social and financial bonds between consenting adults was likely as obvious in the eighteenth century as it is now. But the framers had a much healthier distrust of the federal government than we do today. They gave it no power to define marriage because the framers did not feel compelled to ask or grant the blessing of the federal government in forming private religious unions.

Neither do we need it today to legitimize private unions, religious or otherwise. But as long as both parties seek to engineer social policy through the federal income tax code, the issue of marriage will needlessly divide our country, and state governments will remain unable to fully implement their citizens’ will.

The list goes on and on, but the point remains the same: America was built on individualism and freedom of choice, and what’s right for one person or one state is not necessarily right for them all.

There is no way to make everyone happy with every law, but abandoning the futile and divisive quest for a “one size fits all” centralized government, and returning the states to their rightful role as competing laboratories of democracy is a good start.

Before America can rediscover the promise of her founding, people on both sides of the aisle must come to grips with the fact that the federal government does not exist to impose on the nation either the Right’s or the Left’s vision of freedom, morality, or social justice.

Josh is a freelance writer and journalist originally from the Washington D.C. area. He is a cynically optimistic and unrepentant news junkie. His work has been published locally and in Charleston, SC. Email Josh.

The battles in America have almost gone unchanged since 1936 — and even, before. They are battles for the mind, the soul and the heart. They are battles of philosophy and understanding.

On May 26, 1936, constitutional professor of Princeton University, Edward Samuel Corwin, penned these words in his book, “The Commerce Power Verses States Rights: Back to the Constitution“:

“‘Back to the Constitution’ is the motto of this small volume, and by ‘Constitution’ is meant the Constitution of George Washington, Alexander Hamilton, James Madison (the Madison of 1787, not of 1798, nor of 1829), and of John Marshall; not the ‘interested sophistications’ of those later foster fathers of the Constitution, certain distinguished counsel who about 1890 began, with the too frequent aid of a sympathetic Court, to enmesh the powers of the National Government in ‘a network of juridical nicities’.” (Edward Samuel Corwin, “The Commerce Power Verses States Rights,” Preface, (Princeton University Press, 1936).

Corwin reveals what few in politics would be willing to admit today: that he is biased–biased towards a constitutional view which favors boundless national expansion, regardless of state sovereignty.Let us be clear: none of these American statesmen would have prescribed to the boundless limits of federal power that Corwin and many socialists today would advocate. And even though each (to their own separate degree) advocated for an active and energetic federal government regarding certain limited matters, none advocated for federal usurpation over the states’ sovereign power to regulate its internal polity and commerce.

So what does Corwin suggest is getting “back to the constitution”, which he claims these great men of history would support? In part, this:

“Let [the interpretation of the constitution] recognize that the power to regulate commerce among the States is the power to govern it, and hence the power to restrain it; that this power, like all other powers of the National Government, is not limited by State power, but OVERRIDES ANY STATE POWER WITH WHICH IT COMES INTO COLLISION.” Ibid., 267. (Emphasis added).

This constitutional interpretation can truly be categorized as a limitless power of national government to control the internal affairs of the states, so long as Congress subjectively feels it promotes the “general welfare of the nation”.Did the people of the states really create this kind of government?

To understand Corwin’s position above, one must know that it is entirely a response to the United States Supreme Court ruling in Hammer v. Dagenhart (1918) regarding Congress’ power to regulate intrastate commerce. In this “Child Labor Case”, Justice Day states the following as a supporting rationale to overrule a Congressional act regulating the states’ ability to transport products made by “child labor”:

“The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.***The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted by the Federal Constitution.” 247 U.S. 251, 274, 275.

This United States Supreme Court in 1918 simply follows what Justice John Marshall says in Gibbons v. Odgen in 1824: that matters that of internal commerce are matters solely within the sovereignty of the states. (See cite below). Contrarily, Corwin’s proposition of getting “back to the constitution” means that the National Government should pay no mind or respect to “purely local” matters of the states and should regulate any and all commercial matters “among the states”, regardless of the tenth amendment.

Unfortunately, Corwin’s proposal practically became an accepted interpretation of the constitution by the United States Supreme Court beginning in the “Constitutional Revolution of 1937”, when the United States Supreme Court upheld several Congressional Acts regulating “purely local” matters (which was able to be accomplished after Franklin D. Roosevelt was able to appoint new supreme court justices–The “New Deal” Court–to the bench during his administration). Undoubtedly, the overall attitude of the American people and politicians favored (or at least were not opposed to) federal government intervention in “purely local” matters because of the intense sufferings of the Great Depression. Today, we are facing the consequences.

While I have previously expounded upon former Chief Justice Marshall’s tendency to increase federal power, his supreme court opinions demonstrate that there is in fact a line of separation between Congress’ power to regulate commerce “among the states” and commerce which is internal to the state. (Gibbons v. Odgen, 22 U. S. 194 (1824), “It is not intended to say that these words [‘among the states’] comprehend that commerce which is completely internal.”). To suggest that state sovereignty always give way to the national power is to completely do away with the line. It is in fact to destroy even the natural law of self-preservation. If you accept Corwin’s proposition of “getting back to the constitution”, you might as well throw the tenth amendment in the dump, along with the freedom it protects.

Without having to reveal some of the ideology of the founders (such as Washington and Hamilton), it must acknowledged that equating Congress’ power to regulate the nation’s foreign affairs to its power to regulate the internal commerce of the states is ludicrous and incorrectly reflects the history of the United States of America’s union from 1776 to 1787. History proves that the states never had the same power regarding foreign affairs and commerce that they did in intrastate and interstate commerce. As they fought their war for independence in 1776, the colonies gladly conceded that King George had the power to regulate its commerce with foreign nations. But they did not concede that King George had the same power to regulate their internal affairs.

It was only upon necessity that they even considered calling a constitutional convention to reconsider Congress’ power to regulate interstate commerce. How can it be reasonably argued that the states’ intent was to give Congress the power to also regulate their internal commerce? This makes absolutely no sense and does not comport to the sentiment regarding state sovereignty during that day.

Even a quick observation and comparison of the Articles of Confederation and Constitution of the United States reveals that they are strikingly similar and require similar analysis: they were written and ratified only eleven years from each other! In such a short period of time, would the founders and all of the states have abandoned the confederate structure and principles that virtually all members of society believed to be the best method to protecting freedom? They did not, and they admitted that they did not abandon these principles.

The following are just a sample of strikingly similarities between the Articles and Constitution:

1. -Articles of Confederation, Article 1: “The Stile of this Confederacy shall be “THE UNITED STATES OF AMERICA.” (Emphasis added).

-United States Constitution, Preamble: “We the People of the United States…do ordain and establish this Constitution for the UNITED STATES OF AMERICA.” (Emphasis added).

2. -Articles of Confederation, Article 2: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

-United States Constitution, Amendment 10: “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.”

3. -Articles of Confederation, Article 3: “The said States hereby severally enter into a firm league of friendship with each other, for their COMMON DEFENSE, THE SECURITY OF THEIR LIBERTIES, AND THEIR MUTUAL AND GENERAL WELFARE, binding themselves to assist each other.” (Emphasis added).

-United States Constitution, Preamble: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the COMMON DEFENSE, 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.” (Emphasis added).

4. -Articles of Confederation, Article 4, clause 1: “[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all PRIVILEGES AND IMMUNITIES of free citizens in the several States.” (Emphasis added).

-United States Constitution, Article 4, clause 1: “The Citizens of each State shall be entitled to all PRIVILEGES AND IMMUNITIES of Citizens in the several States.” (Emphasis added).

5. -Articles of Confederation, Article 4, clause 2: “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be DELIVERED UP AND REMOVED TO THE STATE HAVING JURISDICTION OF HIS OFFENSE.” (Emphasis added).

-United States Constitution, Article 4, clause 2: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be DELIVERED UP, TO BE REMOVED TO THE STATE HAVING JURISDICTION OF THE CRIME.” (Emphasis added).

6. -Articles of Confederation, Article 4, clause 3: “FULL FAITH AND CREDIT shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” (Emphasis added).

-United States Constitution, Article 4, Section 1: “FULL FAITH AND CREDIT shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” (Emphasis Added).

7. -Articles of Confederation, Article 6, clause 2: “No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled.”

-United States Constitution, Article 1, Section 10, clause 1: “No State shall enter into any Treaty, Alliance, or Confederation.”

8. -Articles of Confederation, Article 6, clause 3: “No State shall LAY ANY IMPOSTS OR DUTIES, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled.” (Emphasis added).

-United States Constitution, Article 1, Section 10, clause 2: “No State shall, without the Consent of the Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS.” (Emphasis added).

9. -Articles of Confederation, Article 6, clause 6: “No State shall ENGAGE IN ANY WAR without the consent of the United States in Congress assembled.” (Emphasis added).

-United States Constitution, Article 1, Section 10, clause 3: “No State shall, without the Consent of Congress…ENGAGE IN WAR, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added).

10. -Articles of Confederation, Article 9, clause 1: “The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war… entering into treaties and alliances.”

-United States Constitution, Article 1, Section 8, clause 11: “Congress shall have the power to declare War.”

11. -Articles of Confederation, Article 8: “[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

-United States Constitution, Article 6, clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

12. -Articles of Confederation, Article 8: “[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

-United States Constitution, Article 7: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Of course there are many more parallels than just these. Looking at the striking similarities between the Articles of Confederation and the United States Constitution, it is a wonder how an unbiased studier of American jurisprudence could even suggest that the founders and the people of the states intended to abandon the principle of state sovereignty and suggest that the US Constitution was designed to give Congress the power to regulate intrastate commerce however it saw fit for the general welfare. Additionally, when studying the necessary involvement of the States to sustain the Federal government (which has been recognized by virtually every United States Supreme Court), the truth becomes very known that the federal government was never designed to encroach the powers the states possessed at the time the Constitution was ratified.

So when studying the rule proposed by Corwin (that the power to regulate intrastate commerce of the states is as vast and limitless as Congress’ ability to regulate foreign trade), the question becomes, did the founders (Washington, Hamilton and Madison) and ratifiers believe that Congress has such a power? Let us embark on the subject in a subsequent article.

What must be established to this point is that “getting back to the constitution” does not mean the same thing to everyone. But does that mean that everyone’s opinion is correct? Of course it does not.

Francis Lieber (attorney for Abraham Lincoln) expresses this in his book, “Principles of Interpretation and Construction”. ([Boston, MA, Little and Brown Co., 1839], 66). Every constitution is based upon principles–principles derived from a source that is higher than the constitution itself.

Thus, while it is obvious that modern Corwinians advocate that “getting back to the constitution” means expanding national power to unthinkable bounds, the conclusion of their being right or wrong does not necessarily rest on whether or not Washing, Hamilton and Madison (of 1787) desired to form a powerful national government to the exclusion of state sovereignty.

Rather, the answer of the true sense of the constitution lies in the principles of Nature and Nature’s God, upon which those words in the constitution rest. Of course, once you reach the conclusion founded upon those principles, conflict necessarily arises with those who disagree with you.

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty.