Four Poisonous Clauses
Thomas Allen
Since the end of the American Revolution, two political factions or philosophies have fought each other for supremacy: the centralists and the decentralists. For the most part, the centralists have prevailed.
With the adoption of the Constitution, the centralists gained dominance. Lead by James Madison, James Wilson, Alexander Hamilton, and Gouverneur Morris, the centralists maneuvered the people of the States (the bodies politic) as represented in State conventions to ratify the Constitution. The goal of the Federalists, the centralists of that time, was to consolidate all power into the federal government, called the general government in the Constitution, and to reduce the States and the people thereof to insignificance.
(Those who favored adoption of the Constitution were called Federalists, and those who opposed, Antifederalists. Ironically, the Antifederalists, who were decentralists, were true federalists, and the Federalists opposed true federalism.
Later, the Federalists became the Whigs, such as Daniel Webster and Henry Clay. Following the Whigs were Abraham Lincoln and the Republicans. After them came the Progressives, such as Teddy Roosevelt and Woodrow Wilson. Following the Progressives were the liberal Democrats beginning with Franklin Roosevelt and followed by all Presidents since including Republican Presidents.)
Fortunately, for people who value and love liberty, the Antifederalists got the Bill of Rights added to the Constitution. The first nine amendments prevented (in theory) the federal government from encroaching on the unalienable rights of the people. The tenth amendment limited (in theory) the federal government to those powers that the States delegated it by reserving all powers not delegated to it to the States or the people thereof (bodies politic).
(Some argue that the second through the ninth amendments apply to the States as well as to the federal government. However, federal courts did not apply them to the States until the 1920s when federal courts began to apply them to the States with the incorporation doctrine via the fourteenth amendment. Since then, federal courts have applied the second through the ninth amendments to the States with much more vigor than they have applied them to the federal government. Although the first amendment is worded clearly and strictly to apply to Congress, federal courts have applied it to the States. Thus, federal courts zealously apply the first through the ninth amendments to the States. However, federal courts are reluctant to apply the first through the tenth amendments to the federal government — especially the tenth amendment. Since all State constitutions contain a bill of rights, the only reason for federal courts to apply the first nine amendments to the States is for the federal government to gain more control over the States and the people thereof.)
Despite the Antifederalists’ attempts to restrain the federal government, the Constitution contains four clauses that have achieved the Federalist goal of concentrating all power in the federal government and reducing the States and the people thereof to insignificance. These four clauses are the General Welfare Clause, the Interstate Commerce Clause, the Necessary and Proper Clause, and the Supremacy Clause. (Antifederalists objected to these clauses but they failed to eliminate or modify them to protect the States and the people thereof from a metastatic cancerous federal government.)
General Welfare Clause
Article I, Section 8, Paragraph 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;
“General Welfare” is also mentioned in the Preamble to the Constitution. However, preambles do not and are not intended to grant any authority or power. Preambles serve to state the purpose of a document in broad strokes. Consequently, the Preamble of the Constitution cannot be used as a grant of power to the federal government.
Expanding the General Welfare Clause beyond its intent, the federal government has established the welfare state and everything else that it claims benefits the welfare of the people. This clause has been used to extend the powers of the federal government far beyond those explicitly listed in the Constitution.
Contrary to popular beliefs and court rulings, the General Welfare Clause was intended to restrict the powers of the federal government — not to expand them. This Clause was never intended to give the federal government boundless, unspecified powers. According to Madison, the purpose of the General Welfare Clause was to restrain Congress in the exercise of the powers delegated to it — primarily the power to regulate commerce with foreign countries and taxation. According to Hamilton, the General Welfare Clause did not grant the federal government any powers beyond those specifically listed.
Thus, any law enacted was to benefit all the States and the people thereof. Consequently, no law was to benefit one State, region, or group of people more than another. For example, protective tariffs and import quotas benefit the protected industry at the expense of others. Likewise, subsidies to agriculture benefit one segment at the expense of others. Other examples are guarantying loans; making loans; forgiving student loans; unemployment insurance; preventing people injured by vaccines from suing vaccine manufacturers; replacing the gold-coin standard with a fiat-money standard; bailing out banks; constructing roads, waterways, and airports; giving grants to States, universities, and private organizations and businesses; pursuing foreign interventionism; and favoring some States, regions, or groups over others. All these benefit one easily identifiable segment at the expense of others. Even welfare-state programs violate the General Welfare Clause because they forcibly take from producers and give to nonproducers, and, by that, they benefit some at the expense of others.
According to Roger Sherman, who got the General Welfare Clause inserted in the Constitution, its purpose was to clarify that taxes could only be collected to carry out the specifically delegated powers in Article 1, Section 8. Thus, the intent of this Clause was to limit the power to raise money by taxes, duties, and imposts. According to Madison, the intent of this Clause was also to limit spending money to carrying out the powers delegated to Congress.
The General Welfare Clause requires that federal laws benefit all the States and the people thereof — not to expand the power of the federal government. Its intent was to preserve State governments and not to govern individuals. Its purpose was to keep the federal government within narrow limits.
If the General Welfare Clause was as broad as the expansionist claim, the enumeration of powers that follows it would not be needed. Moreover, if citing the General Welfare Clause can justify any purpose, then the entire Constitution is reduced to this one phrase; the remainder of the Constitution becomes merely a redundancy.
As can be seen from the above discussion, the General Welfare Clause has come to mean the opposite of its original intent. Before the twentieth century, federal courts interpreted the General Welfare Clause narrowly. Beginning in the 1930s, federal courts began giving it a broad, nonrestrictive interpretation. Now, the General Welfare Clause justifies the federal government taxing and spending on whatever it desires. Moreover, this Clause can be and has been used to force States to comply with whatever national standard of which the federal government can dream. Thus, the General Welfare Clause has been used to further reduce the States to insignificance and to further limit the liberties of the people.
Commerce Clause
Article I. Section 8. Paragraph 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
One of the most misconstrued and misapplied clauses of the Constitution is the Commerce Clause. This Clause has been expanded to cover not only intrastate commerce but also personal activities that do not involve trade or exchanges for value. With this Clause, the federal government has usurped the power to regulate every conceivable activity in the country.
Part of the problem in understanding the intent of the Commerce Clause is that the terms “regulate” and “commerce” have changed meaning.
“Regulate” as used in the Constitution means to “make regular,” i.e., to remove conditions that have a negative impact. Now, most people use “regulate” in the sense of control, restrain, or subdue, i.e., to impose conditions that have a negative impact.
When the Constitution was written, “commerce” was understood to mean “trade” or “exchange” of goods. As such, it did not cover manufacturing, agriculture, mining, and other means of producing goods for trade or exchange. Moreover, it did not cover consuming, discarding, or doing anything else with goods besides exchanging them. (The States retained the authority to regulated these production and consumption activities.) Thus, the Commerce Clause covers the exchange of goods, but it does not cover the production or consumption of goods. Now, the federal government uses this Clause to regulate every conceivable economic or gainful employment.
The original purpose of the Commerce Clause was to prevent the States from restricting trade across state lines and to authorize the federal government to restrict international trade for the benefit of domestic businesses. Domestically, the intent of the Commerce Clause was to create a free trade zone between the States and, by that, encourage commerce between States. As for foreign trade, the Clause enabled the federal government to enact trade barriers against countries that restricted shipping and imports from the United States. Thus, the intent of the Commerce Clause was to promote trade by preventing the States from restraining interstate commerce and by authorizing the federal government to retaliate against countries that restricted trade with the United States.
However, federal courts, especially in the twentieth century, have corrupted the Commerce Clause to justify the federal government enacting all sorts of laws that restrain commerce. Examples are minimum-wage, price controls, limitations on the production of crops, preventions of farmers raising crops for personal use, criminalization of growing cannabis for personal use, endangered species laws, and environmental laws. It has also been used to create most federal regulatory agencies, such as the FTC, SEC, EPA, and FDA. Constitutionally, these activities come under the jurisdiction of the States.
Necessary and Proper Clause
Article I, Section 8, Paragraph 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.
With a long history of misinterpretation, the Necessary and Proper Clause has become one of the most transformed parts of the Constitution. Federal courts have used this Clause to justify nearly everything that the federal government wants to do — especially in conjunction with the General Welfare Clause. Giving this Clause a broad interpretation, federal courts have given Congress extensive power to enact any law that it fines convenient or useful. With the blessings of the federal courts, Congress has used this Clause to enact any law that it claims is necessary and proper.
The Necessary and Proper Clause was never intended to create any new powers or any implied or inherent powers. (If Congress has implied powers, no one would know where Congress’ powers stopped, and constitutional restrictions on Congress’ power become meaningless.) Its intent was to allow incidental acts that were necessary for implementing the powers delegated to Congress.
Nevertheless, federal courts have interpreted the Necessary and Proper Clause to vest complete and unlimited legislative power in the federal government. Using this Clause, the federal government has seized private property in the interest of historical preservation, has restricted the medical use of alcohol, has detained indefinitely lawbreakers, and has even established centralized banking.
Although the Necessary and Proper Clause was not intended to destroy the States, it has been used to reduce the significance and importance of the State by expanding the power of the federal government far beyond its constitutional bounds.
Supremacy Clause
Article VI, Paragraph 1: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which they shall make, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
With the Supremacy Clause, the federal government has reduced the States and the people thereof to insignificance. Using this Clause, especially in conjunction with the Necessary and Proper Clause, the federal government has nullified the tenth amendment.
Originally, the purpose of the Supremacy Clause was to ensure that unconstitutional laws were not supreme or binding. Only federal laws implementing the powers specifically delegated to Congress were constitutional; all other laws that Congress enacted were unconstitutional (today, the vast majority of the US statutes are unconstitutional).
Now, the federal government uses the Supremacy Clause to ensure that federal laws and treaties have precedence over State laws and State constitutions except in the few incidences where the federal courts have declared the federal law unconstitutional. No longer do federal laws have to be made pursuant to the Constitution, i.e., be constitutional, to have precedence over State laws. Using this Clause, the federal government has preempted or limited States regulating healthcare, medicine, banking, securities, transportation, labor, employment, meat inspection, and a host of other activities that are constitutionally reserved for the States. Thus, Congress, the President, and the federal courts have used this clause to impose their predilections on the States and people thereof.
Unlike today, the Supremacy Clause originally acknowledged that the Constitution was a compact among the States. It acknowledged that the federal government had only the few powers that the States delegated to it. All other powers, the States retained. Now, the federal government uses this Clause to subordinate the States and the people thereof to its whims.
Using the Supremacy Clause to justify the doctrine of judicial review, federal courts have declared a monopoly on deciding which laws and acts are constitutional and which are not. However, this Clause does not give the federal courts such a monopoly. It merely requires federal courts to uphold the supreme law of the land. Consequently, the States individually also have the right to rule on the constitutionality of a law — and even more so because they created the federal court system.
(Oddly, the US Supreme Court has ruled that although when a statute of Congress does not preempt a State’s law, regulations of regulatory agencies can preempt State laws. Apparently, regulations of federal regulatory agencies trump both Congressional laws and the Constitution.)
Conclusion
With these four clauses, the centralists have expanded the federal government beyond the wildest dreams of the Federalists. Using these four clauses, federal courts, Presidents, and Congresses have greatly concentrated power in the federal government. Along with the fourteenth, sixteenth, and seventeenth amendments, these four clauses have reduced the States and the people thereof (bodies politic) to insignificance. Now, the States have only those powers that the federal government condescends to give them. Likewise, the people have only those freedoms that the federal government condescends to allow them. Thus, liberty dies! The spirit of 1776 is no more. The spirit of 1984 has risen.
References
Abbott, Greg. Restoring the Rule of Law with the States Leading the Way.
Benner, David. Compact of the Republic: The League of States and the Constitution. Minneapolis, Minnesota: Live & Liberty Publishing Group, 2015.
Rothbard, Murray N. Conceived in Liberty: The New Republic, 1784–1791. Volume V. Editor Patrick Newman. Auburn, Alabama: Mises Institute, 2019.
Copyright © 2021 by Thomas Coley Allen.
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