August 14, 2010
Taking Back Our ConstitutionBy Anthony G.P. Marini
Americans, the Constitution of the United States of America doesn't belong to us anymore. We have let our guard down one too many times with regard to our constitutional responsibilities, rights, and liberties, and now elected politicians control the document.
Because of a lack of vigilance and perhaps of laziness on our part, our representatives and our government constrain and dominate us using legislative powers obtained from interpretations, penumbrae, and self-serving close calls for scant (and vaguely defined) words in our Constitution. It took a long time for Congress and the government to amass these powers that they have taken from us, and they certainly won't relinquish them as easily as we gave them up. But with unflinching purpose, we must begin to take the Constitution back, as well as reimpose limits on congressional powers, for the sake of future Americans.
The start of flagrant congressional abuse of the Constitution may be traced to the late 19th century1, when lawmakers found they could exploit the previously "silent" commerce clause. As Americans are highly dependent upon commerce, a government that can control all aspects of commerce is a very powerful government indeed. However, any powers that the Congress derives regarding commerce activities arise from Article I, Section 8 of the Constitution: "[Congress has the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes[.]"
This clause was considered silent because lawmakers couldn't figure out a straight-faced way to exploit this narrowly-defined power: The actual wording gives Congress power to regulate commerce among the states, but not between individual citizens. So by conflating a generous reinterpretation with commerce-related laws, the Congress gave itself the authority to regulate individual citizens.
Possessing powers and the ability to use them are two different things. Legislators found they could not assume the additional powers of taxation that they needed to support their generous new commerce powers. Congress required new powers of the purse...the power to tax outside of those powers explicitly set forth in Article I, Section 8 of the Constitution:
Since the late 18th century, presidential administrations (including those of both Washington and John Adams) favored and sought more expansive powers from the so-called "Welfare" clause. However actual expansions of these powers were a long time coming, and not until two mid-1930s Supreme Court decisions2 did the Congress finally get their desired taxation superpowers. At that point, Congress was able to accomplish what was once unthinkable by past Congresses. Congress acquired the legislative tools required to implement a sweeping, socially progressive agenda using just two words: Commerce and Welfare.
Unfortunately, to achieve any legislative end that it sees fit, Congress now uses (or, perhaps more rightly, abuses) our Constitution. On a routine basis, these expanded congressional commerce and welfare powers are wielded by caprice: Rather than being used sparingly and carefully, these powers have become the modus operandi of congressional legislating.
The new powers that the Congress has assumed are all well and good if they are considered in a vacuum. But there is another party with significant interests in the greatly expanded legislative powers of the Congress: the owners of the Constitution -- We, the people!
In what was a historic sidestep, these new powers were assumed without the concurrence of the American people. We citizens were not even given the chance to codify, via a national referendum vote, the limits of the new meanings of "commerce" and "welfare." In effect, citizen-owners of the Constitution were ignored and shut out of the process.
Amazingly, throughout this humiliating process, citizens continued to trust their elected representatives to do what was best for them. However, based on Congress's demonstrated indifference to the will of the people, it is apparent that we were (and still are) guilty of misplaced trust. More and more, through words and actions, congressional solons appear to lack the simple virtue that our trust in them demands.
How important is virtue in governance? Virtue of character was prized by our nation's colonial-era founders: The Founders were truly virtuous men who worried about abuses of the intentionally limited congressional powers. James Madison had this to say about the subject:
And the Founders mightily struggled with the thought that future generations of Americans would eventually discount virtue as the key determinant for the selection of their representatives. It now appears that the Founders' worries were indeed justified. Colonial-era virtue is in short supply in Washington today, and congressional power abuses are rampant.
It is no wonder that there is such a pervasive malaise in our nation when it comes to politics and government. We let our guard down, and we're suffering through the unfortunate consequences. But understand that we got ourselves into this mess, so we are also the way out. No single political deliverer can lead us from our present state of affairs; we as individuals have to begin vigorously asserting our constitutional authority in the national governance process. We need to make it crystal clear that we are not simply a vote to be harvested by representatives-cum-politicians. And regardless of political agendas and platforms, we need to closely evaluate, gauge, and reward each candidate's virtue.
Now is the time when men and women of real, proven virtue must step forward to lead and serve, and they must relegate the practice of constitutional manipulation to the trash heap of history if we are to survive as a viable nation. Only then may we return to the business of living our lives as freeborn men and women, as our divinely-inspired Founders had intended and our Constitution permits.
Anthony G.P. Marini is a consultant, engineer and strict Constitutionalist who resides in Massachusetts with his wife and four patriotic dogs. He blogs at The Sky's The Limit and can be reached at firstname.lastname@example.org.
1 More specifically, the Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890).
2 United States v. Butler, 297 U.S. 1 (1936) and Helvering v. Davis, 301 U.S. 619 (1937).
3 The Federalist No. 57, James Madison (as Publius), February 19, 1788.