When looking at the constitutionality of government programs, it’s not necessary to be a law student, or an “expert” of any kind.  The founding fathers wrote the Constitution in plain English – so that ordinary people would be able to understand the law…that governs the government.

First, we need to understand just what the federal government is authorized to do.  John Munchmeyer put it quite well:

Article I, Section 8 of the Constitution specifically lists or enumerates the powers of the federal government.  They include a military, federal courts, etc.  The 10th Amendment clearly says that unless a function is specifically listed in the Constitution, it is left to the states or the people.  The founders set up a system where there was competition among the states for the best ideas.

On any given topic, some states would perform well, some would pass imprudent laws, and some would stay out of it completely (which is my particular favorite option).  But there was competition, and competition breeds excellence.

Yes, you would have a couple bad apples, but these would soon reform under the pressure of that competition.  It is better than focusing all of the power in Washington and having one huge rotten apple.  The top-down, centralized government model is a failure, just like it was in the former Soviet Union.

The guiding principle under which the founders drew up the Constitution was this little thing called “positive grant.”

What this means is quite simple. The federal government is authorized to exercise only those powers which are positively granted to it by the Constitution. If a power is specifically listed in the Constitution, the federal government can do it. And, vice versa.

This principle was so important to the founding fathers that they codified it in law as the 10th Amendment:

“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.”

Simple, right? Well, you’d think so, but it’s in the nature of government – and politicians – to ignore any rules that limit their power. And that’s why we see both the 10th Amendment, and the entire Constitution, becoming more and more irrelevant in political discussions in Washington D.C.

In short, the 10th Amendment specifically limits the federal government to just those powers and functions named in the Constitution. And the 9th Amendment makes it clear that the people also have many other rights the government must respect, extending far beyond those actually named in the Bill of Rights:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

A quick glance at most federal legislation would make virtually any honest person see that almost everything the federal government does is in direct violation of the Constitution.

This holds quite true for Freddie and Fannie – and for taking your money to keep these failing organizations in business.

Steve Austin chimes in as well:

I know this is going to be a shock to some, but the Federal Gov’t under the Constitution has absolutely no reason or excuse to involve itself in housing for the poor or to help people who got themselves into troubled mortgage loans.

They may have a tort, they certainly merit our concern, and perhaps the several states may wish to help them out depending of the gullibility of their citizenry and the political weakness of their legislatures, but, NO – there is no room for such as Title 8, Fannie Mae, Freddie Mac, or any of the literally dozens of housing program piglets suckling off the sow known as the U.S. Treasury. Not in this universe.

Any leader evn talking positively about this intervention would be a stranger to the Founding Fathers.

So, while many would argue that jobs will be saved, or that it’s “essential” to the economy – it doesn’t really matter if those positions are right or wrong.

Under the system of government that the founders enshrined in the US Constitution – the very existence of Freddie Mac and Fannie Mae (as anything other than a purely private business) is a violation of the Constitution.

Thus, taking more of your money to pay for its failures a far more in line with something that would’ve fit far better in a government under Joe Stalin than that of Jefferson, Washington and the rest.

These people are concerned about their values, their traditions, their lifestyle and their beliefs.  So, many of them are calling on the federal government to “step in” and fix this “problem.”

One thing that these people are definitely NOT concerned with, though, is the US Constitution.

The Constitution was written under what’s called “positive grant.” What this means is quite simple. The federal government is authorized to exercise only those powers which are positively granted to it by the Constitution. If a power is specifically listed in the Constitution, the federal government can do it.

And, of course, the opposite holds true.  If the federal government isn’t given a power in the Constitution, then that power is “reserved.”

This principle was so important to the founding fathers that they codified it in law as the 10th Amendment:

“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.”

The is not one single word in the Constitution about marriage – of any kind.  The Federal Government isn’t given the power to regulate, approve, deny, or anything else in regards to people’s marriage choices.

Period.

And if we someday decide that politicians in Washington D.C. should have the power to determine what is and is not a valid marriage, this country will be in even more danger than it is today.

The best “solution” this “problem” would be to get the government out of the marriage business altogether.

As CNN reports:

The confirmation of Michael Mukasey as attorney general was all but assured Friday when two key Democratic senators said they will vote in favor of the nominee despite questions about his views on “waterboarding” and the president’s power to order electronic surveillance.

Sens. Dianne Feinstein of California and Charles Schumer of New York announced they would support the retired federal judge from New York just hours after the chairman of the Judiciary Committee announced his opposition to the nominee.

The concern from the opposition is that Waterboarding constitutes torture, and thus, would be in violation of the Geneva Conventions – a treaty to which the US government is a signer. Unfortunately, though, no one in a position of political leadership has even brought up the 8th Amendment – and it’s prohibition on the federal government engaging in activities that constitute “cruel and unusual” punishment – but even that’s not my main concern.

It’s the 10th Amendment which should’ve been invoked repeatedly in these hearings.

Let me explain.

The Constitution was written under what’s called “positive grant.”  What this means is quite simple – the federal government is authorized to exercise only those powers which are delegated to it by the Constitution.

This principle was so important to the founders that they codified it in law as the Tenth Amendment:

“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.”

Pretty simple, right?  You’d think so.  It’s pretty clear to me what this means – if the Constitution doesn’t authorize the federal government to do something, then it cannot.

Thus, here’s a few things that the 10th Amendment prohibits the feds from doing:

• Defining Waterboarding – or any other word, for that matter
• Engaging in Waterboarding.

As a matter of fact, a quick reading of the Constitution would verify that the practice of Waterboarding is never even mentioned.  So why is this an issue?

Because the politicians and the bureaucrats would like to make sure that we’re all distracted from the real issues.  They want to keep us in semantic arguments about what words mean – so as to avoid what they dread – the 10th amendment’s limitation of their powers.

This issue is just a microcosm of the problems facing us in regards to the US federal government.  It’s completely out of control – and the first step to reigning it in would be to start demanding a strict adherence to the principle of positive grant – as enshrined in the 10th Amendment.

What does this mean? Well, it’s quite simple. Under Fast Track, the president has the authority to ignore the will of Congress in negotiating new trade agreements.

We must remember that the US Constitution was written under the principle of “positive grant.” This means that the Federal Government is authorized to exercise only those powers that are specifically given to it by the Constitution. Nothing more and nothing less.

This was so important to the founders that they codified it in law as the 10th Amendment:

“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.”

There’s nothing, whatsoever, in the Constitution, which authorizes the president to create, conduct and/or conclude trade deals in this manner. This authority resides with Congress. Period.

Do I trust Congress to do a good job managing trade? Absolutely not. But, the potential for the abuse of power rises in proportion to how few the number of people have that power.

NAFTA is not free trade. It’s never been free trade, and this new push by G.W. isn’t free trade either.

Likewise, it’s not Constitutional. It never has been. And this exercise of raw power by an individual – like Bush is doing and Congress has allowed – has nothing to do with the system of government that was created by the founding fathers.

Sadly, over the years, people have stopped paying attention to the Constitution. It’s rare to hear people talking about the rules for government when discussing current events. And, it’s even more rare to hear politicians refusing to pass legislation because it’s not authorized by the Constitution.

For decades and decades…and decades, we have allowed our government to twist and distort the Constitution – away from its meaning in plain English – into something that changes meaning with the political whims and ambitions of the times.

Hopefully, though, some people will take a moment to try get back in touch with the basics that the founding fathers gave us in this easy-to-read text.

The key principle of the Constitution is quite simple: positive grant. Positive what? Yes, positive grant. Unfortunately, this is not a phrase that many of us hear in daily banter these days. But, it’s not a complicated principle at all.

What it means is this – the US federal government is authorized to exercise only those powers which are specifically given to it in the Constitution. Nothing more, and nothing less. Period. End of story.

The founders felt so strongly about this principle that they codified it in law as the Tenth Amendment:

“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.”

Just a casual review of the activities of the federal government would make clear that there’s very little that it does which is actually authorized by the Constitution.

For many, many years, we’ve allowed our politicians to interpret and bend the rules of the Constitution; ostensibly for good reasons. But, we have to face reality. When you allow politicians to do this over long periods, eventually you end up with leaders who feel that the law doesn’t apply at all.

Sounds familiar, doesn’t it?

If we are to have a free society for the future, we must reign in this out-of-control federal government, and return to our Constitution.

From the article:

Despite having no experience in education, Neil Bush is the founder of a Texas-based company called Ignite! Learning, which, since 1999 has peddled strange little devices called “Curriculums on Wheels” (COWs) to schools state and nationwide. Rather than anything bovine, COWs actually resemble bright plastic droids or office chairs gone terribly wrong. Described as “computer/projectors,” it’s not really clear what they do or how they work, and a cursory look at the company’s website does not help. (Apparently it involves swivel action.) Regardless, there are COWs for different subjects: the Math COW, the Science COW (”the ultimate classroom sidekick!”) and the Social Studies COW.

But here’s the kicker – Neil gets (surprise, surprise) federal funding for his COWs! It’s just another miracle provided to you and I by the No Child Left Behind Act.

Well, of course, there are some people who aren’t happy with this, and another acronym is speaking out against the possible impropriety:

Recently, a three-month investigation by the Citizens for Responsibility and Ethics in Washington (CREW) revealed that schools are spending hundreds of thousands of dollars, including No Child Left Behind funds, on Neil Bush’s COWs. “It is astonishing that taxpayer dollars are being spent on unproven educational products to the financial benefit of the president’s brother,” CREW’s executive director, Melanie Sloan, said in a press release.

There’s definitely a problem here.  But, where I see both Liliana and Melanie missing the mark is that they seem to focus primarily on the symptoms rather than the cause. Melanie’s statement is representative of this; “…It is astonishing that taxpayer dollars are being spent on unproven educational products…”

While it is a potential waste to spend money on unproven educational products, this isn’t the biggest problem. The real issue is that the federal government should not be taking your money and spending it on local concerns – at all.

First of all, there’s nothing in the Constitution which authorizes the federal government to engage in such spending. Readers of this site are probably quite familiar with the fact that the Constitution was written under the principle of “positive grant.” What this means is that the federal government can exercise only those powers which are specifically given to it in the Constitution. Everything else is left to “the States, respectively, or to the people.”

Constitutional arguments aside, there’s also a principle that needs to be followed – the idea that centralized bureaucracies are always loaded with corruption. Remember, it’s not the abuse of power that we should be most concerned with, but rather, the power to abuse. The ability to spend vast sums of money will inevitably lead to more and more corruption in government.

As long as this kind of spending exists, there will always – always – be corruption through kickbacks, contracts with friends and family, and the like. Unless we accept this reality, we’ll always end up with the short end of the stick when trying to improve education in this country.

Whether it’s Bush and his brother getting favored status and federal funding, or a future president and their family getting rich from your income, doesn’t really matter. As long as the power exists, it’s liable to be abused. And that’s the sad truth.

The war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress — not the president — shall have “the power to declare war.”

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a “declaration” by Congress.

Nor were the feeble, post-factum congressional resolutions of support of the Iraq invasion — in 2001 and 2002 — adequate substitutes for the formal declaration of war demanded by the founding fathers.

This is the essence of the unconstitutionality of the war in Iraq – and of every war American politicians have waged since World War II – the last time there was a Constitutionally-mandated declaration of war.

POSITIVE GRANT

The Constitution was written under the principle of “positive grant.” This means that the federal government is authorized to exercise only those powers which are specifically listed in the Constitution. This was so important to the founding fathers that they codified it in law as the Tenth Amendment:

“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.”

As Cuomo made clear, Article I, Section 8 of states that Congress shall have the “power to declare war.” Nowhere in the Constitution is the Congress given authority to transfer that power to any other person or branch. And, nowhere is the president given the power to declare war either.

AUMF. AN UNCONSTITUTIONAL TRANSFER

In 2002, Congress passed the “Authorization to Use Military Force” (AUMF). Although Congress claimed that this legislation “satisfied” the requirements of Article I, Section 8, it did not.

The AUMF was not a declaration of war. It authorized the president to make that decision on his discretion. Thus, the AUMF was a transfer of the war-declaring powers to the excecutive branch – which is clearly not authorized by the Constitution.

In short, what Congress told the president with the passing of the AUMF was “You decide when or if we go to war with Iraq. Just let us know shortly after.”

Therefore, every single member of Congress who voted to transfer this power to the president violated the Constitution. And, the president violated the Constitution by not refusing this illegal transfer of power.

It’s pretty simple. When one branch breaks the law, it’s up to the others to “check” that branch. But, unfortunately, all three branches have been ignoring the plain English of the Constitution for decades.

NO MATTER WHAT

As far as declaring war, James Madison, the “father of the Constitution,” summed it up best:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

It’s in plain English. No right. In any case.

That even includes a situation where the Congress violates the Constitution and transfers its war-declaring powers to the president.

In any case.

No matter what.

Period.