From the Archive: On the U.S. Constitution’s 230th birthday, many Americans don’t realize that the document actually gives the federal government broad powers to provide for the nation’s welfare, as Jada Thacker noted in 2013.
By Jada Thacker (Originally published on July 6, 2013)
The Cato Institute’s Handbook for Policy Makers says, “The American system was established to provide limited government.” The American Enterprise Institute states its purpose to “defend the principles” of “limited government.” The Heritage Foundation claims its mission is to promote “principles of limited government.” A multitude of Tea Party associations follow suit.
Gouverneur Morris, a delegate to the Constitutional Convention and a key drafter of the Preamble. (Painting by Edward Dalton Marchant)
At first glance the concept of “limited government” seems like a no-brainer. Everybody believes the power of government should be limited somehow. All those who think totalitarianism is a good idea raise your hand. But there is one problem with the ultra-conservatives’ “limited government” program: it is wrong. It is not just a little bit wrong, but demonstrably false.
The Constitution was never intended to “provide limited government,” and furthermore it did not do so. The U.S. government possessed the same constitutional power at the moment of its inception as it did yesterday afternoon. This is not a matter of opinion, but of literacy. If we want to discover the truth about the scope of power granted to federal government by the Constitution, all we have to do is read what it says.
The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “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.”
As might be expected in a preamble to a founding document, especially one written under supervision of arch-aristocrat Gouverneur Morris, the terms are sweeping and rather grandiose. But the point is crystal clear: “to form a more perfect Union.” If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.
Enumerated Powers
Article I establishes Congress, and Section 8 enumerates its powers. The first clause of Article I, Section 8 repeats the sweeping rhetoric of the Preamble verbatim. While it provides for a measure of uniformity, it does not so much as hint at a limit on the federal government’s power to legislate as it sees fit:
An artist’s rendering of the Constitutional Convention in 1787
“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”
No attempt is made here, or at any other place in the Constitution, to define “general Welfare.” This oversight (if that is what it was) is crucial. The ambiguous nature of the phrase “provide for thegeneral Welfare” leaves it open to widely divergent interpretations.
Making matters worse for federal government power-deniers is the wording of the last clause of Article I, the so-called “Elastic Clause”: Congress shall have power “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.”
Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses restated in the vernacular flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”
Lately there has been an embarrassingly naive call from the Tea Party to require Congress to specify in each of its bills the Constitutional authority upon which the bill is grounded. Nothing could be easier: the first and last clauses of Article I, Section 8 gives Congress black-and-white authority to make any law it so desires. Nor was this authority lost on the Founders.
“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance. Here is a sample from New Yorker Robert Yates, a would-be founder who walked out of the Philadelphia convention in protest, written a month after the Constitution had been completed:
“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. The government then, so far as it extends, is a complete one. It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”
Yates, it must be emphasized, took pains to identify the “necessary and proper” clause as the root of the “absolute power” inherent in the Constitution well over a year before ratification.
The Tenth Amendment
A particular darling of secession-prone, far-Right Texas Gov. Rick Perry, the Tenth Amendment is often claimed as the silver-bullet antidote for the powers unleashed by the “general welfare” and “elastic clauses.” Here is the text of the Amendment in its entirety: “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.”
President James Madison, an architect of the U.S. Constitution and the Bill of Rights, but also a Virginia slave owner.
Superficially, the Tenth seems to mean “since certain powers are not delegated to the federal government, then those powers are reserved to the states or the people.” This would seem to be good news for champions of limited government. But this is not the case.
The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.
As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress. The Johnny-come-lately Tenth Amendment closed the constitutional pasture gate after the horses had been let out.
This apparently has never occurred to the likes of Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation. Superficially, the logic of this position seems sound: if the states had the legal authority to delegate power, then they may use the same authority to “un-delegate” it by law.
But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say the states delegated their powers to the federal government although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution are reserved to the States. ”
Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. States, in other words, now have no standing to “reserve-back” what they had never “delegated-away” in the first place.
Had it been possible to “un-delegate” the powers of the United States by invoking the Tenth, the Old South would have simply done so and spared itself the bother of secession not to mention the bother of being annihilated by a series of subsequent Northern invasions. The fact that the South did not even attempt such a strategy attests to the toothlessness of the Tenth Amendment.
No other instance in law would be a better example that we should choose our votes carefully. For in ratifying the Bill of Rights, which included the Tenth Amendment, the American people endorsed the legal fiction that the Constitution not the original 13 states, or “We the People” authorized the power of the United States because the Constitution itself said so. If the Constitution has an Orwellian twist, this is it no matter which side of the aisle you’re on.
The states and the people may amend the Constitution. But they may not do so by nullification (according to the logic inherent in the wording of the Tenth Amendment), or by the judgment of state courts (according to the “supremacy clause” of Article VI), nor may any Amendment be made without the participation of the federal government, itself (according to Article V.) If the Founders had meant to ensure “limited government,” there is no trace of such intent here.
Paucity of Rights
If the Constitution were intended to provide “limited government,” we might expect it to be chock full of guarantees of individual rights. This is what Tea Partiers may fantasize but this is not really true. In fact, the Constitution is amazingly stingy in reference to “rights.”
The word “right” is mentioned only once in the Constitution as ratified. (Art. I, Sec. 8 allows Congress to award copyrights/patents to ensure their holders “ Right to their respective Writings and Discoveries.”)
The word “right” somewhat counter-intuitively appears only six times in the ten Amendments called the “Bill of Rights.”
Almost a century later, the first of seven other rights were added under pressure from Progressive activists almost all of which were intended to create and extend democratic participation in self-government.
Amendment XIV (sanctions against states denying suffrage); XV (universal male suffrage); XIX (women’s suffrage); XXIV (denial of poll tax); and XXVI (18 year-old suffrage); and twice in Amendment XX, which gives Congress the “right of choice” in presidential succession.
In grand total, the word “right” appears only 14 times in the entire Constitution, as it exists today (including the two rights conferred to government).
Did we all notice that the “Constitution of the Founders” did not include the “right” for anybody at all to vote? Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which apparently unbeknownst to Tea Partiers everywhere bears no force of law.
The word “power,” by the way, occurs 43 times in the Constitution, each time referring exclusively to the prerogative of government, not right-wingers. Since “individual” rights are mentioned only 12 times, this yields a ratio of about 4:1 in favor of government power over individual rights. Without the efforts of those pesky, democracy-mongering Progressives, who fought for universal voting rights, the ratio would be more than 6:1 today or 50 percent higher.
This statistical factoid is not as trivial as it may appear. Expressed in practical terms, Michele Bachmann, Sarah Palin or Clarence Thomas would almost certainly never have achieved public office had they lived under the “limited government” designed by the Founders they so revere.
The Bill of Rights
So what exactly are our non-patent/copyright “rights,” under so-called “limited government?”
Amendment I the right of people “peaceably to assemble, and to petition the government for redress of grievances”
Amendment II the right “to keep and bear arms, shall not be infringed”
Amendment IV the right “to be secureagainst unreasonable searches or seizures”
Amendment VI the right “to a speedy and public trial”
Amendment VII the right “of a trial by jury”
Amendment IX enumeration “of certain rights” shall not deny “others retained by the people”
That’s it. What happened to the famous rights of free speech, religion or press? The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon. If Bill of Rights author James Madison had meant to stipulate them as positive “rights” all he had to do was write it that way, but he did not.
Bear in mind Madison (then a federalist) wrote the Bill of Rights under political duress. Since anti-federalists (recall the skepticism of Robert Yates) flatly refused to ratify the Constitution unless it guaranteed something, Madison had to write something. In effect, the amendments were the pig the anti-federalists had bought in the poke, three years after ratification had paid for it.
Madison, at the time of writing, had little incentive to take pains with what he wrote because federalists did not believe a Bill of Rights was necessary, or even good idea (with Alexander Hamilton arguing a Bill of Rights would be “dangerous.”) This may account for the fact that some of what Madison wrote seems vague, or even ambiguous, as in the case of Amendment II.
Amendment IX, for example, actually makes little sense, which may account for the fact nobody ever seems to mention it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This sounds “righteous” enough, until we recall the Constitution to which this Amendment pertains had “enumerated” only a single right in the first place! Even if Amendment IX applies to the Bill of Rights (to include itself), then all it says is “the people may have more rights than the half dozen mentioned so far, but we’re not going to tell you what they are.” (So if Amendment X is Orwellian, Amendment IX verges on Catch-22.)
Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.
And what sense should we make of the crucial Amendment V one of the four Bills of Rights not actually containing the word “right” at all?
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]
Thus, life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast. That is what it plainly says.
It is interesting, too, that the Bill of Rights does not speak to the origin of rights, but only to their existence. Moreover, the Constitution never speaks of granting rights, but only protecting them. There is a good reason for this: excepting the Progressive suffrage Amendments, none of the guaranteed rights were American inventions, but had for centuries been considered the rights of the English nobility.
For those who want to believe in “American Exceptionalism” as the basis of “limited government,” this is not encouraging news. Moreover, the Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece.
Property Rights and ‘Republic’
The strict libertarians among us claim the sole legitimate power of government is that which is necessary to protect private property rights. On this score, however, the “limited government” of the Founders is practically mute. Except for the aforementioned Article I, Section 8 provision for patents and copyrights, private “property” is only mentioned twice in the Constitution, both times in a single sentence of the “right”-less Amendment V quoted above:
George Washington, who presided over the Constitutional Convention and became the first President of the United States.
“No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]
Once again, Amendment V fails to guarantee personal immunity from the power of the state, but rather details the way state power may be used to dispossess individuals of their property. And we must bear in mind these words were not penned by Marxists, socialists, or Progressives.
Whether by design or happenstance, the original “Constitution of the Founders,” or the Bill of Rights, or even the Constitution with all its Amendments does not grant any irrevocable “right of possession” to property. Even the Second Amendment’s “right to keep” arms, is subject to the terms by which property may be taken under terms of Amendment V, and it always has been.
Tellingly, the word “democracy” does not appear in the Constitution. This intentional oversight is often smugly celebrated by anti-democrats among us, who insist that the United States of America was founded as a “republic.” No doubt this is true, given that the Constitution was written by an exclusive, hand-picked cadre of oligarchs, whose number did not include a single woman, person of color, or wage-earner.
Unfortunately for the pro-republic “limited government” crowd, the Constitution does not contain the word “republic” either. The word does appear as an adjective, but only once, (Article IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion”
Typically for the Constitution, which defines few of its terms, the word “Republican” also remains unexplained. The ambiguity of the term turned out to be handy, however, as Radical Republicans continuously and egregiously violated Article IV, Sec. 4 from 1865-1877 as they enforced blatantly unconstitutional military occupation of former Confederate states during the gross misnomer of “Reconstruction.”
It should be obvious that the “Constitution of our Founders,” including the Bill of Rights, may not protect as many rights as many wish to believe. Moreover, we have already noted the Constitution dropped all revolutionary talk of “unalienable” rights and “Creator endowed” liberty. This was not an oversight.
The revolutionary bit about “consent of the governed” posed an especially delicate problem for the Founders. Almost all owned slaves or were masters of property-less tenants or domestic servants, including their wives none of whom could offer their legal consent even if they wished to do so. Thus the Founders shrewdly considered it unnecessary to include any voting rights in the new republic they planned to rule, uncontested by the disenfranchised lower castes.
Did this result in the land of the free, with liberty and justice for all? Let’s see.
Under the U.S. Constitution, Americans were sentenced to death for protesting unfair taxes; journalists and citizens imprisoned for criticizing government officials; citizens’ property seized illegally; workers murdered by government agents; thousands jailed without the “privilege” of habeas corpus; entire states deprived of civilian courts; untold numbers of American Indians defrauded of liberty and property; debt-peonage and debtors’ prisons flourished, as did slavery and child labor; and the majority of the public was denied the vote.
All this was considered constitutional by the Founders. None of these outrages, please note, was the result of “progressivism,” which had yet to be articulated, and all were common prior to the New Deal and the advent of so-called Big Government. Was this the face of “limited government?”
No, it was not. The concept of a democratically “limited government” was not for a moment entertained by our Founders, nor is it by those who idolize them today. With few exceptions, the Founders were Eighteenth Century patricians who took a revolutionary gamble meant chiefly to perpetuate their privileges, free from English colonial overlord-ship. It should come as no surprise these elitists drafted a Constitution that posed no threat to aristocracy.
‘Limited Government’ as Act of Faith
The original Constitution of the United States of America was just so much ink on paper. The Constitution, as it stands today, is just a lot more ink on paper.
A portrait of Alexander Hamilton by John Trumbull, 1792.
But the Constitution’s ink is important and deserves respect because it represents nothing less than the collective civic conscience of the American people. A great many Americans have dedicated their lives in trust to that conscience on battlefields, in classrooms, in everyday civic life, and even a few in the halls of power.
It is evident that most of the Amendments to the original Constitution as well as the Supreme Court’s decisions interpreting its scope and purpose were made because the document had over the course of time been found wanting by the American people, whose common interests it was not originally intended to serve. As the collective civic conscience of the people changed, so too did their interpretation of self-government.
But the entire concept of social evolution (much less biological evolution) is something the ultra-Conservative rank-and-file likely does not comprehend and it is not something their leaders encourage them to consider. The reason for this may have less to do with politics than with fundamentalist faith.
An anecdote in point: the editor-in-chief at Random House once asked the extremist libertarian Ayn Rand if she would consider revising a passage in one of her manuscripts. She reportedly replied, “Would you consider revising the Bible?”
Ergo, that which is sacrosanct neither requires nor will tolerate change to include the fantasized “limited government” of the immortalized “Founding Fathers.” The fact that Rand was a noted atheist only underscores the point that fundamentalist faith is not restricted to any particular brand of fanaticism.
Yet the Constitution’s conception was anything but immaculate. It was not carted down from the Mount in tablets of stone, nor is it the product of some mysterious Natural Law interpretable only by libertarian gurus. And whether its meaning is best exemplified by the Tea Party flag depicting a talking snake (“Don’t Tread on Me”), perhaps only Eve could judge with authority.
The Constitution is not a holy book, and there is no good reason for anybody to treat it like one. The men who wrote it were not prophets, nor were they particularly virtuous, though some could turn a pretty phrase. In fact, the Constitution’s most unholy-book characteristic is its most welcomed attribute: its readers are not required to believe in its infallibility in order for it to make sense to them.
But we are required to read the Constitution if we want to know what it says. The ultra-conservatives’ obsession with a constitutionally “limited government,” which has never actually existed, suggests they do not understand the Constitution as much as they merely idolize it.
These constitutional “fundamentalists” along with the American public in general would do better to pick the document up and read it sometime, not fall on bended knee before it and expect the rest of us to follow their example.
Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: [email protected]
“Would you consider revising the Bible?”
The Bible has been copied, edited and revised throughout history.
I have been a law professor for 44 years, a tenured full professor of law for 38 years. I have been a member of the law faculties of Washington University (at St. Louis), Rutgers University (at Camden), and Villanova University. My arguments win in the U.S. Supreme Court, the federal trial and appellate courts, and the highest courts of the states. I have taught U.S. constitutional law and written published articles in the field.
If a law student submitted the Jada Thacker article’s text to me to satisfy an essay requirement, I would flunk it. It is near-thoroughly erroneous, sorely risible, too abysmally flawed to deserve deconstruction. A federal court would declare its arguments “frivolous” and dismiss its thesis summarily.
An *expert* who is too lazy to even point to essays/scholarly articles/books which lay out the True Situation?
Sorry, but I don’t buy what you’re peddling.
I wrote: “…too abysmally flawed to deserve deconstruction.” So, why do you expect that I would waste my time on putting a criticism of such crap, even on putting citations of sources that would render a tenable constitution-construction.
I would not attempt to “lay out the True Situation” or even cite another’s work to “lay out” such. The concept “true situation” is word-salad in the field of construing the constitution.
But I shall render some pablum to you — citation of an article that puts a legitimate theory of constitution-construction:
http://www.theamericanconservative.com/articles/where-liberals-and-conservatives-are-wrong-about-the-constitution/
(I disagree with some of that article’s thesis; but I acknowledge that its writer’s thinking deserves respect.)
In a previous comment, you suggested that readers consider this: https://dougwils.com/s7-engaging-the-culture/when-there-is-no-ham-in-the-ham-sandwich.html
I reviewed that web-page. It peddles dross spiced with crazy religion.
I didn’t ask for pablum, buster. I’d wager you really did go to the dougwils site you dismissed and saw that Mr. Thacker was perfectly capable of replying to specific criticisms. Given that all you’ve been writing are the vaguest of generalities, I suspect you don’t want to risk an encounter with him or some other competent person.
Your amerianconservative link was to a one note guy named Ilan Wurman. He sings the praises of “originalism” and doesn’t write about much else. I did manage to locate a piece condemning the judicial logic of a case overthrowing drug testing of welfare recipients. How did Wurman know this was something The Founders wanted? Good question. Maybe Originalists can contact the dead Founders and thus learn their thoughts on that and other issues. Things like the Police State spying on Americans with technology which didn’t exist then.
h**p://www.weeklystandard.com/framers-of-mind/article/647316
Your link author Ilan Wurman also penned a piece titled “Individualism, Community, and Moral Obligation in the Hebrew Bible”
h**p://www.thepublicdiscourse.com/2012/09/6463/
This one is worth examining, for Wurman obviously assumes that every event described in the Old Testament Exodus is true. Then he proceeds to moralize about it. The gentleman spent some time interning with one of the biggest Israel suck-ups in the US Senate.
“Israel Paid Senator Tom Cotton $1 Million To Block The Iran Nuclear Deal
The Hebrew bible commentary and the work with Cotton strongly suggest Wurman is a rightwingnut Zionist.
Finally, this fellow you claim deserves “respect” is just out of college — 2013 Stanford. Is he your kid or something?
Finally a link of my own about the execrable Antonin Scalia.
“Justice Scalia and Originalism: May They Rest in Peace”
Originalist to the core, except when he wanted to do something the Founders explicitly forbade. The old **** simply did any of the rightwingnut stuff he wanted and used Originalism as a cover – sometimes.
h**ps://www.secularhumanism.org/index.php/articles/7913
You do not understand Ilan Wurman’s article, but misapprehend it utterly. The law and logic, and even READING, are alien to you.
The rest of your reply? Idiotic and nuts. I shall not respond again to your blather.
Jada Thacker….this article is so full of BS and false conclusions that one hardly knows where or how to begin. The Preamble gives no specific powers to the federal government. It is a ‘mission statement’, describing the over-all intent of the purpose of the new federal government and specific powers which the sovereign states were delegating to its creature. It makes no rational sense to declare that ‘provide for the general welfare’ means anything more than what some of the Framers/Founders said it meant: that the government must, in its authorized actions, design policies without favoring any person, group, class or organization but to apply them equally to all. If one searches dictionaries of that era, one finds no reference whatever to ‘welfare’ meaning anything to do with benefits to the people or any other entity as it is meant today. To do otherwise, such as applying the obligation to defend against invasions only to New York and Virginia, or to limit States in applying their own import/export fees only to Massachusetts and Georgia, would NOT be for the general welfare of the entire country.
Secondly, it makes no rational sense, either, to give an all-encompassing power to the federal government in the preamble, and then immediately create a provision which strictly limits those powers: Article 1 Section 8. Further, the notion that the ‘necessary and proper’ clause also gives unlimited powers to Congress under the ‘general welfare clause’ is grossly faulty because you leave out its most important qualification: “…for carrying into execution the foregoing Powers…” It is extremely misleading to omit this important phrase as if those ‘foregoing powers’ are not specific delegations of power to the government.
I could go on but the argument that the powers of the government are unlimited is so silly and wrong one must reject it out of hand. It is as if the writer has completely ignored all of the debates and opinions leading up to the writing of the Constitution which make totally clear the intent to limit the powers of the federal entity being created and leave the majority of governing powers with the sovereign states, which by the way relinquished ONLY those powers specifically listed. If that wasn’t the case, why list them at all? It would seem that the worries by the States’ delegates over being subjugated by a federal government with too much power never existed for this writer.
This effort as an amateur US Supreme Court would never pass the constitutional law test given at the end of your first year in law school.
The work invests the General Welfare Clause found in the Constitution to have been a grant of overwhelming powers to Congress in the economy from the beginning of the nation.
Historically though, the General Welfare Clause was treated as the preamble it is, a generalization of no real substance. After all, the powers of the federal government were enumerated, so there was no call for wider congressional and executive powers than from the list of powers already provided.
The Clause has been used as an escape door at times for certain dilemmas, but even today the General Welfare Clause does little to support the powers of the federal government. It is the Commerce Clause found in the Constitution that supports the massive interference in the US economy by federal dictate in so, so many ways.
For the first 150 years of the nation’s history Americans enjoyed the constitutional “right to contract”, a freedom as dear as any other found in the Constitution. Even minimal federal or State interference in the economy was struck down by the courts in virtually every instance.
After FDR’s election in 1932 and the beginning of the end of the Laisse Faire economy, the US Supreme Court still stood firm on the constitutional right to contract, though divided in its vote.
The NRA (National Recover Administration) designed to limit industrial competition and to set prices at a higher rate was held unconstitutional Schechter Poultry Corp. v. United States The AAA (Agriculture Adjustment Administration) designed to reduce crop sizes and to raise prices was also struck down, among other laws. United States v. Butler
With FDR’s landslide re-election in 1936 though, the dam broke for the constitutional right to contract when one SCOTUS Justice switched his vote from what it had been 18-months earlier without offering his own explanation for his changed vote (ever).
West Coast Hotel v. Parrish upheld as constitutional a minimum-wage law for women and children enacted in the State of Washington.
The constitutional right to contract rather quickly was effectively removed from the Constitution, seldom ever mentioned again. This is what has empowered the Leviathan federal government ever since, not the General Welfare Clause.
Then, this article talks at length about the Tenth Amendment for reasons unclear to anyone, seemingly trying to magnify the separate sovereignty of the States they have always held. Amazing in this connection, the Bill of Rights in general is no serious part of this article on the restraints on the United States government and the States. ????
Turns out the Tea Party has the much better grasp on the US Constitution and its history.
“Arch-aristocrat Gouverneur Morris,” is that how we are to refer to Alexander Hamilton’s staunchest ally, the author of the magnificent preamble, tireless opponent of slavery and the inspiration for the Erie Canal? I think not.
so you just convinced all the lawyers in the room why the views of conservatives shouldn’t hold salt, but what about those of us who just want a functioning government?
Throughout the Constituion we see the name “United States” how is that entity different from the present “UNITED STATES OF AMERICA”?
Guest-
I’m sure you know the answer and are teasing, but for those who don’t: United States as used in the constitution refers to the original thirteen states, the “organic” constitution/compact among them. The United States of America refers to the private corporation based in Puerto Rico that usurped the people’s United States and now pretends to rule, quite falsely and illegally, under admiralty law rather than common law.
See http://www.annavonreitz.com/
I love essays like this regarding topics in which I’m basically an ignoramus. Agree or disagree, I’m going to learn something. I checked on the original 2013 essay and eventually found a link where author Thacker wrote a reply to a naysayer on another blog. That’s fascinating reading too, so here is the “almost” link.
h**ps://dougwils.com/s7-engaging-the-culture/when-there-is-no-ham-in-the-ham-sandwich.html
All previous comments prove that our constitution is open to interpretation but unfortunately, the ultimate interpreter is a Supreme Court that has all the consistency of a squirrel crossing the highway.
The Constitution was written in large part by slaveholders, and the rest wealthy elites. They were from a society that was unequal to a spectacular degree, beyond anything we imagine today.
They saw problems with that. They provided for ways to modify that. Their goal was, quoting the Preamble, “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.”
Then after writing that, they felt obliged to add more, to add the Bill of Rights. That has continued to expand, not least in the 14th Amendment applying it all more widely.
Then the early Supreme Court adopted an expansive interpretation of the Commerce Clause, allowing Federal intervention across a wide range of activity in ways that specifically protected the general welfare from narrow private privileges of localities.
Early dispute was settled with national improvements, the first highways and the Erie Canal as examples.
The history was of an expansive Constitution that steadily grew in interpretation at the hands of the Founding Fathers who wrote it.
The right now makes up claims that the Founders rejected two hundred years ago.
Your history is so sweet, I really hate to have to wake up to the reality of how this awful document has been used to continue and increase the crimes it was written to cover up.
The case for American “exceptionalism” has to be squelched at all costs if humans and Earth’s creatures are to survive this malignant form of exploitative government and industrial capitalism that it has spawned. To continue down this dark and destructive path will insure that humans along with most other higher lifeforms will cease to exist. Putting the Constitution as a ‘holy writing’ has furthered the destructiveness of the whole system. It’s now time for a drastic change or folks won’t survive plain and simple. I guarantee that I’m not alone in these thoughts and time’s short indeed to make the necessary changes.
Amen.
And wouldn’t you know, somewhere in that jury-rigged document, thrown together in 1789 to avoid the complete dissolution of the nascent Anglo-American country when the existing Articles of Confederation conspicuously failed, were further arcane words not discussed in the present essay that have allowed the regime holding power in Washington to exercise absolute hegemony over the entire planet whether said planet likes it or not. To find such a mandate amidst such chaotic and contradictory verbiage is truly exceptional.
All “original Intent” of our United States Constitution was written on behalf of the ‘Thirteen Colonies’ – a much weaker group of collective constituents. Expansion by means of added-on states provided a growth spurt which pressured the Official Gov’t to add “amendments” to the “original Intent”.
It has always been Conservative South’s intent to prosper economically my means of slave/cheap labor. – ‘beat them down, repeatedly, until they learn to recognize their proper place in Civil Society. The conservative south, anti-Lincoln right-wing racists were the backbone of the (then) Democratic Party of anti-black Confederate Rebels who chose war & death over > Imposed Political “equality” with another race of people.
Now we have the Right Wing, in America, waging a political war against the Majority of this nations’ citizens on behalf of Those Whom Will Most Benefit From Reducing The Size Of Gov’t By Means of Major TAX_CUTS for Corporations.
What has bewitched them but the continued desire to maintain economic control by means of subjugation & exploitation of The
Lowest Economic/Educated Classes of People?
The Actual ‘Original Intent’ (blacks as 3/5’s persons and Native Americans as savages) has gained the ascendancy
in America (MAGA) and the world-at-large by means of American Hegemony (predominance, dominion-ism/imperialism) as
pre-scribed by Samuel P. Huntington’s essays and books as predicted in his book, “The Clash of Civilizations”.
The Poor of the world suffer inhumanely – thru wars bringing irreparable destruction and catastrophic suffering and death.
How could anyone vote in favor of a dissimulation of health care?
For a continuation of profit from burning Earth Threatening fossil fuel?
Why does now Extinct- “Original Intent” sustain Authority
over this 21st century US citizenry/World?-(race remains The Line Of Demarcation)
This article is embarrassing to those who know their history and are familiar with the ratification debates which took place in each state. Limited government meant just that, and the attempt to explain it away by Jada Thacker is sophistry. Why would states which recently won their independence from the British Union decide to give up their liberty to a new foreign government in DC? Didn’t they learn any lessons? If this was their intent, as Thacker holds, our founding fathers should be condemned rather than praised.
Many states claimed, in their ratification declarations, that they could resume all powers delegated to the federal government when ever that government became destructive of their rights. This could happen if said government assumed powers it wasn’t granted or took powers away from the states which rightfully belonged to them. Madison would agree that this would be a breach of the compact (Constitution) and end any obligation for the states or people to honor it. Madison believed this had happened under the Articles of Confederation.
This article is a fantasy. What Thacker is saying is that we have a consolidated nation state rather than a confederated republic. Does he understand federalism at all?
A “confederated republic”? Are you kidding? Corrupt-militaristic-oligarchic-tyranny, might begin to define the mess we have instead of a government.
A confederated republic is how the new system which replaced the Articles of Confederation was sold by those in favor of it. See for example Hamilton in Federalist #9. The USA was established as a confederation of states and the Constitution didn’t change that fact. More powers were granted to the federal government but the confederate nature of the government didn’t change.
It is true that today the federal government sees itself as above the Constitution and without meaningful limits. This government is not the one our fore fathers left us nor the one the American people consented to. Government via consent went down the drain with Lincoln and its rogue nature is the result thanks to the nationalists who followed him.
David Kaiser – thank you.
Mr. Kaiser — your remarks are “right on”. It is embarrassing that a preamble, which is the “justification” (or, you could say “statement of purpose”) for the subsequent document, is routinely confused with the articles that outline the specific powers granted to the national government. The states still retain sovereignty in those areas not specifically granted to the national government (see Federalist #45), and in case the national government oversteps its authority the states have the right to rescind their delegated powers (in other words, secession is clearly legal and appropriate). Two states had clear clauses to that effect in their ratifying statement.
I love how this website rails against the abuse of power that the national government exercises overseas, but then on domestic issues it favors national “supremacy” over the states. It seems to me that a government powerful enough to fulfill the liberal domestic agenda has to also possess the power to be a tyrant overseas. To oppose one, means you should oppose the other. Many “conservatives” have this same blind spot, but in inverse.
What seems to be over-looked is that the government has, by Constitution, unlimited power to do what it sees fit to do, to: establish justice, provide for the common defense, promote AND provide for(per Article 1,Section 8) the General Welfare. Anything outside this scope of activity isn’t Constitutionally permissible, otherwise the government has unlimited power, as befitting a Sovereign government, to accomplish only those legitimate aims of any government that can plausibly be considered LEGITIMATE, as those aims are defined in the Preamble (which, in short, can be summed up as being a good servant to We The People).
…and, to make matters worse, most humans have not been taught to think critically.
(Einstein: Question Everything)
The American Police State has been superimposed over “we the people” not only in these United States but over the entire world.
We control the 7 Seas with our massive Navy and every continent with over Eight Hundred Military Bases.
Our super aggressive shoot to kill first selfish brutality is a malignant manifestation of the inhuman Doctrine of Manifest Destiny.
As the British racist statesmen Cecil Rhodes proclaimed; “We [the Anglo-Saxons] are the first race in the world, and the more of the world we inherit the better it is for the human race.”
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Interview Excerpt—
4) AB: While the United States exhales the last breaths as a declining global power, no longer able to impose its will, it lashes out in pointless acts like lobbing 60 cruise missiles at Syria or sending 4,000 troops to Afghanistan. Such acts do not change anything on the ground or modify the balance of forces in Washington’s favor. They do, however, have a strong impact on further reducing whatever confidence remains in the US, closing the door to opportunities for dialogue and cooperation that might have otherwise got on the table.
AV: Here I have to strongly disagree. I’m almost certain that the West in general, and the United States in particular, are clearly aware of what they are doing. The US has some of the most sinister colonial powers as its advisers, particularly the United Kingdom.
The US will not simply go down the drain without a great fight, and don’t ever think that Europe would either. These two parts of the world were built on the great plunder of the planet. They still are. They cannot sustain themselves just from the fruits of their brains and labor. They are perpetual thieves. The US can never be separated from Europe. The US is just one huge branch growing from an appalling trunk, from the tree of European colonialism, imperialism and racism.
Whatever the US, Europe and NATO are presentlydoing is brilliantly planned. Never under-estimate them! It is all brutal, sinister and murderous planning, but from a strictly strategic point of view, it is truly brilliant!
Full interview — http://www.countercurrents.org/2017/09/12/the-people-of-afghanistan-have-had-truly-enough-of-western-imperialist-barbarism/
From a strictly strategic point of view, the machinations of the Empire are a total failure. Anyone who thinks the US is succeeding through it’s repeated military and diplomatic failures, has a strange definition of success. Going broke and being on the verge of collapse does not spell victory in my book.
The goal of self-destruction is the destruction also, of the primary threat to Empire (think “kamikaze”, but bailing out at the last second; no guarantee of making it). Ancient Rome accomplished this miracle, bringing on the Dark Ages while the black-hearted Roman oligarchs recouped, regrouped, and planned in Venice for their eventual return to Reign (as the various Euro & Brit Empires), knocking off the Byzantines and Charlesmagne along the way( the inheritors of the destroyed Empire). The advice to NOT underestimate them is sound.
Thanks for this article. I really appreciate it. Finally, someone not directly affiliated with the LaRouche people “gets it” (which is no problem for me, because LaRouche’s insight and wisdom is self-evident to me). We’ve been involved, in a 240-year struggle, with those oligarchic/financier forces and assets (STILL in existence) that used to go by the name “British Empire”, and the various other Euro-Empires are just mirror reflections of the same thing. Their “God” is the Roman Empire, which, even in its’ final “destruction” managed to salvage key parts (families and their fortunes and loyal retainers) and retreat to Venice, to convalesce and plan their comeback, sweeping out through the Holy Roman Empire, the Netherlands, and finally England (under William of Orange), to build the most extensive of Empires. They’ve finally managed to defeat our Continental Republic to turn us into soldiers-for-Empire, without most of us even being aware of it.
Pretty much the observations made by the anti-Federalists when opposing its adoption and denied by the Federalists when promoting it. I’ve always suspected the anti-Federalist arguments were accurate but not necessarily those that would best promote the common welfare, which after all, is the social purpose of the State. I suspect Hamilton, to me the American Machiavelli albeit not in a pejorative sense (Machiavelli is generally misinterpreted), knew exactly what he was doing, laying the foundation for a hegemonic empire.
The people from Europe who colonized the current US were religious fanatics Christian jihadists who wanted and demanded society adapt their extreme views of Christianity the majority in Europe didn’t want to put up with them so they left. The sum of their ideology is – Anything that makes you smile unrelated to the worship of the Christian god is a sin. This extremist ideology justified the genocide of the native peoples and later slavery. The constitution, written in the most hypocritical of circumstances – by slave holding rapists – reflects fully this ideology. These were the people who knew the mind of god without question.
The constitution is treated as, and assumed to be – like religious texts – and to contain universal and fundamental and most importantly absolute “rights” “truths” it is through the use of the word “rights” that religion is infused throughout the document this is augmented by the use of “rights” as absolute(god given). It is a religious term and it separates those with “rights” from the other – unbeliever. Some great philosophical work has been done on this subject by Richard Rorty – don’t let the word philosophy put you off he is quite accessible.
In the world of science and philosophy there are no absolutes. There is no absolute truth, there are no absolute rights, there ultimately are no “rights” there are people with “The Will to Power” Absolute-ism is a religious concept – god must be absolute, his word must be absolute, abortion must be absolute – to understand anything as absolute requires faith – quantum mechanics does not.
The dominate paradigm of the US is now wounded, it will not go on much longer, this is clearly good news for our planet and for us.
The 500 year reign of terror produced by the protestant reformation and the ideology of Calvin (and others) may finally be coming to an end. Cast your mind over the last 500 years – think of the whole sale slaughter of the innocents to appease a vengeful god and rid the world of evil. For 500 years we have been the fanatics and extremists. We have killed the most, caused the most human suffering – in the name of god.
Amen. Well stated MaDarby. May the curse of White American Exceptionalism be lifted from humankind and all the creatures that have been exploited and destroyed by it. All this justification of our evil behaviors by pretending it is some “God” or other’s holy will and law is nothing but disgusting lies. When will we accept responsibility for the things we do to each other and this innocent planet? Our lies are sealing our doom.
Just remember this: the constitution is not a holy scripture. It was simply a blueprint for exploitation. And still is.
A fig leaf for plunder and enslavement of others. An excuse for mass murder. A mass of pretty lies to cover the real ugliness of America.
The religious ones were the New England settlers, the Puritans (this is what the World called them). This involves my personal family history, and what my ancestors(arriving in 1640) called themselves were “Independents”, not Puritans(a term of derision cast by the wicked, debauched Oligarchy that reigned, and STILL reigns supreme, stinking up all of Europe and the British Isles to this day). The meaning of the term “independent” meant independent of King and Pope, and answerable to God directly, for their behavior and conduct, not recognizing any “divine authority” whatsoever, in any King or Pope who were generally tyrannical, despicable scumbags in their behavior. For the Independents, Parliament was the supreme Worldly authority (hopefully being successful in finding good people to serve in Parliament), with it’s individuals, themselves, being accountable to God, and answerable to Law, for their behavior and actions.
Of course, there were dim-bulb, “red neck” versions of the same, which generally tars the reputation of all the rest…such is life in this Dark World.
Plus these people gave us Darwinian “Free Market” Capitalism–“red of tooth and claw”