As I write this the presidential election is less than a week away and I am thinking that no matter who wins we the people are screwed either way. I really don’t want to see Barack Obama in the Oval Office for another four years, but I am still torn as to whether I could live with myself if I sacrificed my principles and voted for Mitt Romney just to see Obama gone. I know I am going to catch hell from many of my, so-called, conservative friends for this, but in my opinion neither candidate is worthy of the office they seek.
I don’t care if you are a Republican or a Democrat, it seems that everyone intends to vote for the presidential contender that promises to do things about the issues that are of importance to them. Nobody seems to realize that the president has absolutely no legislative authority whatsoever, as that is the power granted by the Constitution to the Congress. The president does have the power to sign, or veto legislation enacted by Congress, but other than that his real duty is to ensure that the laws enacted by Congress are faithfully upheld. So when people are voting for a presidential candidate because he promises to ‘do things’ that they agree with, it shows from the get go that these people don’t have the foggiest idea of how our government is supposed to function.
Most people have heard that our country is a democracy so many times that they actually believe that rubbish. We are a republic, governed by the rule of law, not a democracy. Ben Franklin gave about the best definition of democracy that I have every heard, “Democracy is two wolves and a lamb voting on what to have for lunch.”
Our government was created to serve certain specific functions, and nothing more. The Constitution outlines the various branches of our government, and lists their specific functions. Far too often I hear people say that the Constitution is outdated and irrelevant. If that be the case then I suppose our government is outdated and irrelevant as well, because without the legal authority granted government by the Constitution our government would not have any power and authority over us whatsoever.
I also hear from many that the writings of our founding fathers bear no relevance to modern times. Yet as recently as 1969 the Supreme Court ruled that “The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the constitution.” Powell v. McCormack.
Therefore, if you are among those who think the writings of our nation’s founders are irrelevant, let me ask you a personal question. What makes you think you are qualified to decide what powers the government should wield? Honestly, what qualifications do you have that makes your legal opinion more valid than that of the very men who wrote the document under discussion?
It seems that nobody, not the government, nor the average American, understands the simple fact explained by James Madison in Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” I hate to sound condescending, but it does not take a degree in law to understand that what that means is that government doesn’t have a whole lot of power, and what power it does have is specifically listed. C’mon people, if you can’t understand that simple fact then there is something seriously wrong with your thinking process.
Still, some people think that our government seems to have an almost unlimited amount of power, or at least that it has certain non-enumerated, or implied, powers. For justification people always say what about the General Welfare Clause, or sometimes they throw the Necessary and Proper Clause in my face. People may believe that these clauses grant Congress an inordinate amount of power over almost every aspect of our lives but they fail to realize that our founders were quite clear that this simply wasn’t the case.
Standing before the members of the Virginia Ratifying Convention, James Madison declared, “[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
In a letter to Albert Gallatin, Thomas Jefferson wrote, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
Arguing against the Cod Fisheries Bill of 1792, James Madison said, “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”
Former Supreme Court Justice Joseph Story, whose Commentaries on the Constitution stand as one of the defining legal briefs upon the powers granted government, said this about the Necessary and Proper Clause, “The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. ”
In Alexander Hamilton’s 1791 opinion on the Constitutionality of a National Bank, he stated, “It may be truly said of every government, as well as of that of the United States, that it has only a right, to pass such laws as are necessary and proper to accomplish the objects intrusted to it. For no government has a right to do merely what it pleases.”
He also went on to say, “The degree in which a measure is necessary, can never be a test of the legal right to adopt it…The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality, not the more or less of necessity or utility.”
And finally, in the Resolutions in the General Assembly regarding the Alien and Sedition Acts, the delegates declared, “RESOLVED: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers.”
I think I have made it pretty clear that our founders did not believe that these implied powers granted our government any new, or unspecified powers to enact laws regarding matters that were not among the few and defined powers spoken of by Madison in Federalist 45, and listed in Article 1, Section 8 of the Constitution.
In Federalist 33 Alexander Hamilton declares, “But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe.”
As those we choose to be president, as well as those who serve us in Congress, have all taken an oath to uphold the Constitution, and the Constitution is the Supreme Law of the Land, then therefore they are all bound by that oath to observe it.
In Federalist 47 James Madison warned “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”
Therefore, if the Constitution specifically lists the powers granted government, and if the government clearly oversteps the boundaries imposed upon their powers, then does that not make them tyrants?
You may think that all these things our government does is in our best interests, or for the common good, but it does not matter. Daniel Webster once said, “Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions.”
In a 1911 article in the North America Review, Supreme Court Justice Horace Lurton is quoted as saying, “The contention that…the Constitution is to be disregarded if it stands in the way of that which is deemed of the public advantage…is destructive of the whole theory upon which our American Commonwealths have been founded.”
In Federalist 15 Hamilton also stated, “It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience.” Voting someone out of office every time they come up for re-election is NOT a penalty or punishment.
In his Notes on Virginia, Thomas Jefferson opined, “[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”
Yet if, as Hamilton said, that laws are to be attended with a sanction for disobedience, and if the government disobeys the Supreme Law of the Land, what sanction can we the people impose upon our elected representatives?
If you’ll recall from previous articles, in 1794 the Supreme Court ruled “The sovereignty of a state does not reside in the persons who fill the different departments of its government, but in the People, from whom the government emanated; and they may change it at their discretion. Sovereignty, then in this country, abides with the constituency, and not with the agent; and this remark is true, both in reference to the federal and state government.”
We are their bosses, and if they fail to obey the law, it is our moral duty to hold them accountable. As former Supreme Court Justice Robert H. Jackson said, “It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.”
In 1905 the Supreme Court ruled that “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”
I know a lot of you reading this have no patience for these principles and how they may limit the candidate you select from doing the things you want him/her to do for you. But in 1921 Supreme Court Justice Benjamin Cardozo said, “The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles.”
So, when you vote for a candidate are you voting for one who will uphold the Constitution and adhere to the principles this country was founded upon, or are you voting for a candidate because they belong to the same political party you do, or simply because they are better than the other guy?
It is my belief that the level of corruption, and lack of adherence to Constitutional principles we see in our elected representatives only reflects the level of corruption we as a people are willing to tolerate. We outnumber them almost a million to one, and if we would only stand together as one and demand that they uphold the Constitution, then we would see real change. But as long as we allow ourselves to be divided along party lines, or by petty issues while our rights are stripped away from us, we may as well walk into the voting booth and flip a coin because neither candidate running for president has shown me that they have the faintest idea of what limit’s the Constitution imposes upon our government.
If I haven’t made my point perfectly clear than I may as well just give up. Either the people of this country are just not willing to stand behind what they believe in, or they just don’t care. In either case nothing I can say will make a damn bit of difference.
All I can say is that in five days America will make a choice. The problem is that neither choice is worthy of MY vote. So maybe I’ll stay home and crack open a bottle of Jack Daniels and toast all the fools who think that their vote is really going to make a difference.
November 1, 2012
~ The Author ~
Neal Ross can be reached for comments at email@example.com.
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