What needs to be done about abuse of power by the Federal government?
"...the Constitution 'has either authorized such a government as we have had, or has been powerless to prevent it.' Liberty's champions have to come to terms with that logic.
September 22, 2012With apologies to many of my esteemed friends in the Tea Party Movement….
We hear much ado these days about the issue of federalism. That is, what powers does the national government have and what powers does that level of government not have. And of course, the corollary: What powers does the Constitution bestow on the states and what restrictions does it place on state action?
For most "constitutionalists," many libertarians and a substantial majority of the TEA Party members I have heard discuss and debate issues of federalism the conceptual framework they apply to the U. S. Constitution is that the national government possess only that power delegated to it by the "enumerated powers" clause of the Constitution. They argue that the Tenth Amendment retains those powers to the states, or to the people, that are not delegated to the national government.
So when the Federal government does things, such as adopt ObamaCare, that are not explicitly authorized by Article I, Section 8 of the U. S. Constitution these constitutionalists argue that such acts are unconstitutional in that they violate the intent of the Founders in writing the U. S. Constitution.
It goes without saying that such a neat delineation of powers, duties and restrictions is not, in reality, how things are. Thus that leaves many in the strict constructionist cadre arguing that much of what government does is illegitimate, vis-ŕ-vis "unconstitutional."
Barack Obama and many on the left are of the opposite persuasion. They argue that the original intent of the Founders was that the Constitution was more of a broad framework within which the government would function and that the details of that conceptual framework were matters to be worked out politically. That is, by the various legislative bodies and even by executive agencies. From that concept we get the expansive Environmental Protection Agency rules and various and sundry Executive Orders.
There are two fundamental threshold problems with the Constitutionalists' position. The first is that obviously things are not the way they say they should be. Fundamentally that shifts the burden to them to show that the reality of the situation is contrary to the original intent of the Founders. The second fundamental problem is the impact the loss of the War Between the States by the states who stood on the principles of states' rights.
We'll save the latter discussion for later, but on the issue of whether the Founders' original intent was to establish a Federal government with limited, enumerated powers, Sheldon Richman, the editor of The Freeman, makes the case that the Founders debated—and ultimately rejected—the following phrase being included in the U. S. Constitution: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." Richman cites (and provides a link) to a more detailed discussion entitled The Dubious Enumerated Powers Doctrine" written in 2008 by Professor Calvin H. Johnson.
As distressing as the arguments of Richman and Johnson are to constitutionalists, they nonetheless beg refutation before credence is given to the argument that Congress has in various ways exceeded its constitutionally delegated powers.
Click here to read Richman's post, which contains a link to Dr. Johnson's article.
We solicit a debate and discussion of these issues. If there's enough interest we will then turn to the effect that losing the Civil War had on the Tenth Amendment.
We posted this article to support an argument that we have made consistently in recent years. That is, the solution to the problem of the balance of power between the national and state governments is a political issue that must, and would best, be addressed at the ballot box.
We would argue that it is imperative that We The People elect representatives to Congress and the state legislature that hold to our beliefs of where the exercise of governmental power is best sited. And we think the most important place to address the issues of federalism is with the candidates we elect to our state legislature.
The reason our state legislatures are so critical in resolving issues of federalism is simply because the states, through their legislative representatives, can change the U. S. Constitution, either through the amendment process or by calling a constitutional convention.
I have made this argument to numerous state legislative candidates and I will disclose that the only one I believe who has ever understood it is the current Republican candidate for House District 6, Mattie Lawson. Most legislators and legislative candidates will say something like "well, that's a Federal issue and I would not be called upon to deal with that in the N. C. Legislature."
Nothing could be further from the truth. The very fact that state legislatures have the power to propose Federal constitutional amendments and ratify amendments passed by Congress makes a compelling argument that collectively the state legislators in our nation possess infinitely more power to correct the abuses of federalism than anyone else, other than the justices on the U. S. Supreme Court. Even the threat of potential action is an immense check and balance on Congressional abuse of their powers.
Lawson understands this and has openly and consistently advocated a more assertive stance by the N. C. Legislature in curtailing the power of the national government. We need more legislators like that.
And if such assertiveness in proposing amendments is not sufficient we would suggest that the legislatures of the several states should call for a constitutional convention to address the abuses we have seen in recent years in Washington.
Perhaps the time has come to make the constitution say what we want it to say.
In the second part of this series Diane Rufino will provide us with a detailed analysis in rebuttal to Richman and Johnson. She will propose another way that the issue might be addressed.