Article I Section 8, Federalist No. 45, and the Tenth Amendment - the usurpation of power by Congress
AIPNews.com
by Bob Bailey
It is difficult to understand how our national leaders can pass many of the laws they do given they have no authority to do so. It is also difficult to understand how everything seems to have been turned upside down -- what use to mean one thing now means the opposite. Well, here are the facts regarding the intent of the Constitution and how politicians attempt to convince us they are operating within its confines.
US Constitution
Article I - The Legislative Branch
Section 8 - Powers of Congress
17 Sep 1797
Taxing and Spending Clause – Article I, Section 8 of the US Constitution is sometimes referred to as the "The Taxing and Spending Clause". It's intent is to grant Congress the power to impose taxes for paying for three general areas: (1) pay off the Debt incurred during the war for independence, (2) provide for national Defense, and (3) provide for the general Welfare. The first paragraph reads as follows:
(first paragraph) 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 Clause – The "general Welfare" clause in this paragraph is what the leaders in the central government use to grant themselves power to do whatever they want. However, James Madison pointed out that if this is what was intended, there would have been no need to enumerate the limiting powers listed in this same article. Madison was very clear that the power to tax and spend was confined only to the enumerated powers listed in the US Constitution. As has been pointed out, the general Welfare clause is a reference to one of the three areas where power was granted to the federal government with regard to taxing and spending, and those powers are enumerated between the first and last paragraphs of Article I, Section 8.
The first paragraph, therefore, is clearly an outline of what is to follow, which are the enumerated powers granted to the US Congress.
Necessary and Proper Clause – The "necessary and proper" clause is the other clause the central government uses to grant themselves power. This clause is found in the last paragraph:
(last paragraph) 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.
Here again, if the intent had been to grant the federal government unlimited powers there would have been no need to list the powers granted to the federal government, either in Article I, Section 8, or anywhere else in the Constitution. The intent of this clause is to provide the federal government the means to carry out the powers that were granted to it in the Constitution. For example, Section 8 grants the power to the federal government "To establish Post Offices and Post Roads". With regards to establishing Post Offices, it is "necessary and proper" that the government build post office buildings in order to carry out this function.
The last paragraph is clearly a clarification regarding the authority granted Congress as listed in the enumerated powers, and only the enumerated powers.
Commerce clause – Before leaving Article I, Section 8, the Commerce clause should also be discussed. The Commerce clause is an enumerated power listed in Article 1, Section 8, Clause 3. The clause states:
[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
This clause is often paired with the Necessary and Proper Clause in order to take a broad, expansive perspective of the Commerce clause. However, several facts must be taken into account. By definition "commerce" is the commercial exchange of goods and services including the marketing, purchasing, and transporting those goods. Production, on the other hand, is not part of the process of the commercial exchange of goods and services. "Among the several States" means activity occurring in more that one State. “To regulate" means the power to prescribe rules under which commerce shall be transacted. Taken together, this means Congress can not regulate matters that are completely internal to a State. Congress also can not interfere with things that are not necessary for executing its enumerated powers.
The way usurpers in the Congress have used the Commerce clause is to argue that commerce should include any gainful activity; which would of course give power to the central government to control the entire economy. Some have even proposed the Commerce clause is to deal with any human interaction including speech. The problem with these ideas is that they are inconsistent with the thinking of those who participated in the creation our Constitution.
US Constitution
Tenth Amendment
15 December 1791
When determining the intent of the US Constitution with regards to broad versus limited power there is the Tenth Amendment. This Amendment is part of the Bill of Rights, which were proposed by the First Congress to address the concern that the Constitution, as drafted, would open the way to tyranny by the central government. The Tenth Amendment reads:
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.
This Amendment addresses the powers retained by the States and the people. It makes clear the idea that the federal government is limited only to the powers granted in the Constitution and restates how the Constitution's principle of federalism is designed; that is, by providing that powers not granted to the National government nor prohibited to the States are reserved to the States or the People.
The Federalist Papers
Essay No. 45
[James Madison]
26 Jan 1788
Quoting The Federalist No. 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger, those of the State governments in times of peace and security.”
Federalist No. 45 makes clear the distinction between the external powers granted to the federal government from the domestic powers reserved to the States. The Federal government's power pertains, for the most part, to external or foreign affairs. The State government's power pertains to the life, liberty or property of the people of the several States. Again, Congress was not granted broad authority under the general Welfare clause. Therefore, Congress does not have the authority to fund domestic social programs under the guise of the general welfare.
Examples of Unconstitutional Taxing and Spending
Congress often seeks to exercise its powers which are not authorized in the Constitution by offering or encouraging the States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device is to condition allocation of federal funding where certain State laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide State 55 mph speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the States would lose highway funding if they refused to pass such laws. http://en.wikipedia.org/wiki/Tenth_amendment
Another easy to understand example of how Congress usurps its authority is the funding of local or particular projects comes from an article written at the Tenth Amendment Center. At the present time, Congress imposes a general gasoline tax of 18.4 cents per gallon throughout the United States. When Congress writes a spending bill and a powerful member of Congress wants to buy some votes from the folks back home, he places an earmark in the legislation to have a 3 million dollar bicycle trail built in his home State or congressional district. The money for the project is appropriated from the general fund of the United States where the gasoline taxes were deposited with other taxes of a general nature. Thus, taxes from the general fund were used to finance a local or particular project within an individual State. This is unconstitutional. The project was not for the [general] welfare of the States in their united capacity. This is unconstitutional. Since building bicycle trails in the States is “not authorised in the Constitution, either expressly or by fair implication,” the appropriation failed this test and is unconstitutional. In other words, Congress cannot impose a general tax throughout the United States, put the money in the general fund of the United States, appropriate money from the general fund of the United States, and then spend the money for a local or particular project. (from the Tenth Amendment Center http://www.tenthamendmentcenter.com/2009/08/04/congress-a-wealth-eating-virus/ )
Conclusion
In summary, Congress can only tax and spend in order to: (1) pay the debt, (2) provide for the common defense of the Nation, or (3) for the general Welfare of the nation; and if for the general Welfare, then it must be governed by BOTH the following:
a. Authorized in the Constitution.
b. Be general and apply to all; not for local or particular projects.
Since every spending bill passed by Congress for the general Welfare of the nation must meet both of these requirements to be constitutional, and very few of the spending bills by the central government can meet these standards, then members of Congress have usurped their authority.
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