Monday, March 10, 2014

Those Pesky Enumerated Powers

I saw snippets of CPAC speeches from this past weekend. One was Texas Governor Rick Perry, talking about states experimenting to see what works—and the very clear evidence of what does work and what doesn’t, marked by how much more it costs to rent a truck to escape from California and come to Texas than the other way around. Where he really got my attention was toward the end (about 8 ½ minutes in) when he talks about enumerated powers.
It’s not too late for America to lead in the world, but it starts by leading at home. And it starts by returning to the founding principles of democracy, found in our Constitution. Among the enumerated powers of Congress are: the power to lay and collect taxes, to pay debts, and provide for the common defense, to regulate commerce with foreign nations, to declare war, to raise and support armies, to provide and maintain a navy.
But nowhere does the Constitution say we should federalize classrooms. Nowhere! Nowhere does it give federal officials—nowhere does it give federal officials primary responsibility over the air we breathe, the land we farm, the water we drink. And nowhere does it say Congress has the right to federalize health care….
It is time for Washington to focus on the few things the Constitution establishes as the federal government’s role: defend our country, provide a cogent foreign policy. And, what the heck! Deliver the mail, preferably on time and on Saturdays. Get out of the health care business. Get out of the education business. Stop hammering industry. Let the sleeping giant of American enterprise create prosperity again.
You can watch the entire 11-minute speech here:


Governor Perry gives a good summary. But, for the sake of thorough exercise, let’s list the enumerated powers.
The Preamble to the Constitution is a good source for the purposes of delegating anything to the federal government. We’ll put this in bullet list form, to make it easier to see:
We the People of the United States, in
·         Order to form a more perfect Union,
·         establish Justice,
·         insure domestic Tranquility,
·         provide for the common defence,
·         promote the general Welfare,
·         and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America.
Then the Constitution lays out the structure of the government to do those things. Most of these are spelled out in Article I, which says what the legislative body can and should do, and how the legislative powers are divided between two houses: the House directly responsive to the people by population, and the Senate designed to be responsive to the several states (although since 1913 also directly elected, but still numbered two per state, rather than by size of population).
In Section 8 of Article I there’s this great list of what the legislative branch can make laws to do (followed in Sections 9 and 10 with listed limitation). So, here are the enumerated powers of Congress:
1:  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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2:  To borrow Money on the credit of the United States;
3:  To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4:  To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
5:  To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6:  To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7:  To establish Post Offices and post Roads;
8:  To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
9:  To constitute Tribunals inferior to the supreme Court;
10:  To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11:  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12:  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13:  To provide and maintain a Navy;
14:  To make Rules for the Government and Regulation of the land and naval Forces;
15:  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16:  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
17:  To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
18:  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article II directs the select process for the executive branch, which is responsible for carrying out (executing) the laws legislated by Congress. The president is the commander in chief of the armed forces. He has the power to negotiate treaties with foreign nations (but can only make treaties with the approval of the legislative branch). Also with legislative approval, he can appoint ambassadors, consuls, and Supreme Court justices.
The president takes this oath:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” So here the Constitution restates the preservation of the basic law—the Constitution. Anything the president does that fails to preserve, protect and defend the Constitution, pesky enumerated powers and all, and any purposeful failure to uphold the duly legislated laws is breaking that oath.
Article III covers the judicial branch, mainly the Supreme Court. Their cases concern mainly those to which the US itself is a party, and also disagreements between two or more states.
Article IV covers the concept of citizens receiving the same US citizen rights in the various states. That also means committing a felony in one state and fleeing to another state means you’re still subject to prosecution. There’s also something about how new states can be added, with equal standing among the older states. And here’s an interesting requirement: The federal government “shall protect each of them [the states] against Invasion.” Border security is required.
Article V covers amending the Constitution, which has been done only 27 times (which some might say is a few too many). The first 10 Amendments were included in the original ratification of the Constitution, often referred to as the Bill of Rights, which we’ll get to in a minute.
Articles VI and VII cover the treatment of existing debts, contracts, and treaties at the founding, and details concerning ratification.
So, then we get to the Bill of Rights, the first 10 Amendments. Inalienable, God-given rights are not limited to these, but these are the ones the founders decided better be spelled out, in case a future time came when they were no longer self-evident. So these are specifically to let the federal government know—You Cannot Do This!
So what can the federal government not do?
·         Establish a state-favored religion
·         Limit the free exercise of religion
·         Limit freedom of speech
·         Limit freedom of the press
·         Limit the right to freely assemble
·         Limit the right to petition for redress of grievances (file lawsuits over government wrongdoing)
·         Infringe on individual right to bear arms
·         Force citizens to quarter soldiers
·         Search or seize property without probably cause shown by warrant
·         Put person on trial for felony without indictment by Grand Jury
·         Put person on trial for same offence again after being found not guilty (double jeopardy)
·         Force person to testify against themselves
·         Fail to provide an accused with swift justice (speedy and public trial by jury)
·         Right to jury trial for property disputes over a certain threshold
·         Inflict excessive bail or cruel and unusual punishments
·         Construe anything in the Constitution to take any additional rights from the people
·         Assume any power not spelled out in the Constitution, but assume those are left to the states and the people.
So those are the limits. We could easily add, under those last two, that the federal government cannot usurp the rights of parents, except in the extreme cases where there is immediate endangerment to the child (and that would be local and state governments, not federal in any case). Otherwise, parents have the right to make all decisions about the care, upbringing, and educating of their children.

So Governor Perry is right about the federal government needing to get its sticky hands out of education, out of health care, out of commerce—and anything else not specifically granted.
And the founders foresaw that there would be attempts at misconstruing. They were right. The commerce clause has been stretched beyond elasticity to mean the government can get involved anywhere there is or could be commerce, to the point of preventing home gardens if they think you could affect the market by not buying because you’ve grown your own. If the founders had meant the law to be that gaping, why write a limiting Constitution at all?
There’s misconstruing about the second amendment, because of that phrase about expecting people to be prepared to serve in a militia. So someone comes along and decides that means, if you’re not in a militia (and we don’t need those while we have standing armies), then you don’t need a gun—although maybe we’ll decide you can use one for hunting. No, the founders knew that granting the right to protect us did not give up our right to individually protect ourselves.
Then there’s misconstruing the freedom of religion—so that it limits expression of religion, as if the first amendment said, “Government shall not allow any public expression of religion, because not all people believe the same, and some could be offended.” It’s just the opposite. The amendment guarantees our rights to worship our own way, without government deciding what to allow (within the limits of accepted law—no child sacrifice, for example). So when the government says a person must go against their own conscience, that is simply tyranny.
Governor Perry was right about one additional thing as well: once a person gets power, it’s human nature to try to keep it. So now that so many powers have been usurped—taken unconstitutionally—how do we get them back as a people? The written law is on our side, but not the law enforcers.
Gov. Perry suggests electing a better president (it would be hard to elect a worse one), and elect leaders who understand limited government and want that. I think he’s right that electing the right leaders is important. But I don’t know if that will be enough. He started his speech quoting Thomas Jefferson as saying, “A little rebellion now and then is a good thing.” Which sounds extra nice with a Texas accent.
Nevertheless, the kind of rebellion we need is one of hearts and minds, not might. We need every elected leader from president to county clerk to know and understand the Constitution, and the principles of limited government. We get that by sharing what we know with more and more thinking, caring citizens. And then we pray it will be enough. We have a long road back up to freedom, prosperity, and civilization.


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