Where’s the evidence to the claim that the Constitution is not the problem? Just follow it! Just enforce it?
There is a false authority claim, if we just followed and enforced it, America would be all right. Therefore, there would be no need for an amending convention. But we’re following the wrong one!
- The Constitution is followed and enforced, just the wrong one.
- There are two Constitutions: The Framers original and the one used by SCOTUS today.
- America’s problems point to DC & can be attributed to two short clauses totaling 28 words.
- The abuse of the commerce and welfare clauses are the primary source of our problems in DC.
- The welfare misinterpretation has allowed Congress the power to spend & tax without limit.
- The commerce misinterpretation has allowed Congress to regulate without limit.
- Under commerce, the Court ruled Social Security is nothing but a standard welfare program.
- Under welfare, the Court ruled that a farmer must sell and cannot consume his own wheat.
False authorities claim our DC problems are not the Constitution’s fault while also agreeing that our unconstitutional DC is corrupt and dysfunctional. They argue that there is no way to mend DC other than by voting for politicians with good character and then to rely on their oath as required in Article VI.
The naysayers’ have only scratched the surface of DC’s culture problem and not followed the research and analysis of Constitutional scholars who point to a very different story.
From Supreme Court case histories, the scholars have illustrated how the abuse of two clauses, the welfare and commerce clause, have resulted in nearly all that ails the federal government. Of course, there are other issues in Washington DC that need repairing: term limits, limits on the judiciary and a method by which, in addition to elections, states and citizens can more directly hold DC accountable.
There are two reasons why following the document today will not resolve what ails the Constitution. The first is that we have two constitutions. The first Constitution is the version written by the Framers in 1787 and amended over successive centuries through the first clause of Article V. And the second Constitution is the version interpreted by the Supreme Court.
The founder’s version contains approximately 4400 words on one sheet of parchment; when the Bill of Rights are added, about 7500 words. Contrast that with the Supreme Courts library of Constitutional interpretations which contains well over 500 volumes with several thousand pages each totaling a word count in the many millions. These Constitutional interpretations were made by unelected lawyers in black robes to fit a political agenda at the time.
The second reason is that today the Constitution has some inherent problems. It is like any tool that has been used, abused, and modified for two-plus centuries and there are bound to be issues that need fine tuning to correct the misinterpretations of the Founders intentions. The Constitution is not perfect as evidenced by the need for the 21st Amendment to repeal the 18th. The same argument could be made for the income tax (16th) and the transfer of the state’s sovereignty to the federal (17th).
The welfare clause in Article I, Section 8, states, “The Congress shall have the power to lay and collect taxes…to provide for the common defense and general welfare.”
Today Congress takes the position of unregulated authority to enable it to spend and tax without limits. The Court has not checked Congress’ power and allowed unconstitutional interpretations to win the day for the government. It also readily admits there are no Congressional limits on politician’s carte blanche use of taxpayer’s resources.
Social Security has been labeled by the Court as welfare and not an entitlement. A politician will never tell you that, but the Supreme Court said it in Helvering v. Davis (1937).
Today our grandchildren and future prodigy are in debt for over $22 trillion because Congress is not being held accountable for their spending. After all, they’ll be long dead by the time the bill comes due. In 2018, taxpayer’s debt reached its 61st consecutive year of increases. We shelled out $371 billion on debt interest alone. That’s the same amount given the government to distribute for Medicaid and is almost half of what Medicare cost (including the $35 billion lost in fraud and waste, according to Treasury).
James Madison and Alexander Hamilton had two different views on the Constitutions ‘welfare clause’ during the 1787 convention:
Madison argued that America’s ‘welfare’ was solely contained within the 18 enumerated powers given the federal government in Article I, Section 8. This was also the dominate view among the founders. Hamilton thought, however, that the clause was an independent grant of spending authority. One opinion reflects a limited government versus an unlimited one. The anti-Federalist versus the Federalist.
Hamilton thought, contrary to his opinion on the unlimited welfare clause, that if the states could spend on a particular issue, then the federal had no power under the welfare clause to spend on that issue. So, the limits on the welfare clause were to be, in his mind, for the states to decide.
For example, if the states spent money on education, the federal had no power to tax and spend for the same purpose. If we followed either approach, our federal debt would be zero and our taxes could be cut in half and we’d still be in the black. And each state could measure its standard against the others without interference from the federal. The founders believed in a limited government and that if the states could spend on the subject, the federal government could not.
The commerce clause states, “The Congress shall have power…to regulate commerce…among the several states…”
During the founding era, the dictionary described “commerce” as meaning ‘traffic’ or ‘shipping’ while today it means any “economic activity” that can be regulated. It took several iterations over many decades for the Court to stretch its meaning.
Court case examples tell the story:
- 1824 (Gibbons v. Ogden) the clause was broadened from mere traffic to include the navigation of steam ships.
- During the 1930’s, the Court expanded the clause to include agriculture, manufacturing, and production intended for interstate sale.
- In Wickard v. Filburn (1942), it expanded it to include noncommercial activity. As such, Ohio farmer Mr. Wickard’s fine of $175 was upheld by the Supreme Court, under the commerce clause, for consuming his wheat himself and not selling it on the open market.
- Today the commerce clause is used to justify laws on civil rights, industry bail outs, nationalization of companies, required healthcare purchase, and regulations of divorce, economy, guns, the environment, and a plethora of other intrusions into American’s lives better left to states.
The Constitution, with its method for self-correction either by government or by the people and states, has shown the world that it is the finest form of government ever devised even with its few foible’s. It worked well over the first hundred plus years, but now needs some tender loving care. Legal and yet safe care.
So, to the skeptics and false authorities, where is your evidence that the Constitution is problem free? Or are these two clauses the real problem? Are they Washington DC’s primary source of power and wealth that are causing our crisis?
State Legislators’ Article V Caucus Resources