Wednesday, May 07, 2008

Allow Me To Bore You Just A Bit More

I am pretty sure that everyone has heard the philosophical question, 'What came first, the chicken or the egg?' The same concept can be applied to liberties, 'Which came first, liberty or government?'

If you think about that question for a moment, you can only come to one conclusion, that liberty preceded government. Government is an institution that serves one of two purposes. It either restricts liberties for the benefit of those in power, or it protects liberties for the benefit of all.

If you read the Declaration of Independence, you will see that the author, Thomas Jefferson, believed that our liberties come from our Creator, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Therefore our government has no right, nor authority to deny us what God grants us at birth. The Preamble to the Constitution affirms that one of the duties of government is to protect those rights, "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity..."

Our government was established as one of limited powers. Those powers are clearly defined in the Constitution. However our government has taken upon itself powers that it has no authority to assume. How did this happen?

Almost since the very beginning of our governments history there has been a power struggle between those who believed in a strict interpretation of the Constitution and those who wanted a looser interpretation.

Those who favored a strict interpretation, chief among them, Thomas Jefferson, felt that "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

Those in opposition to this principle, led by Alexander Hamilton, felt "[A] criterion of what is constitutional, and of what is not so.... is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality...."

How was this debate to be settled, and by whom? The answer came in a ruling made by the Supreme Court, particularly by Chief Justice Marshall, in the case of McCulloch v. Maryland, 17 U.S. 316 (1819).

Chief Justice Marshall took Jefferson's concept of specific, enumerated powers and tossed it out the door, ruling that the government has unlimited implied powers. His logic was as follows. Chief Justice Marshall took the 18th Clause of Section 8, Article 1, which states that Congress shall have the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers..."

From his ruling in McCulloch v. Maryland, Justice Marshall states, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." In common terms, the end justifies the means.

Part of the 'necessary and proper' clause is that it applies to 'the foregoing powers'. The first clause of Article 1, Section 8 states, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States..."

If we are to conclude that Chief Justice Marshall believed that the end justifies the means and tie that to the power of Congress to provide for the general welfare, we have the situation in which Congress now can pass almost any law it deems is necessary to provide for the 'general welfare' of the United States.

Thomas Jefferson warned us what would happen if we allowed the judiciary to settle disputes such as that, "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

Unfortunately, that is exactly what Chief Justice Marshall did with his ruling in McCulloch v. Maryland, he granted Congress the keys to Pandora's Box, granting them a plethora of powers that are nowhere to be found in those specifically enumerated within the Constitution itself, they belong to Congress because they are merely implied.

What was the result of the Courts decision in this landmark case? We have a government that has passed so many laws, concerning things that are nowhere to be found within their area of responsibility in the Constitution, that you would be hard pressed to find at least one law you are not violating in the obedience of another.

As a consequence of that ruling, the rights of the states were also diminished in that if Congress passes a law as authorized by their implied powers under the Constitution, and the Constitution is the supreme law of the land, Article 6, Clause 2, then the states are bound to obey. If a state does try to flex its muscle against the federal government, the Congress, or the President merely has to tighten the purse strings and withhold federal funding for one of many programs, that they honestly have no authority to be funding in the first place. Quite the catch 22, isn't it?

You may be thinking to yourself that I have strayed off course, as I began talking about rights and liberties and ended up talking about implied powers of Congress. Hold on just a moment longer, it all ties together.

We now have candidates running for all offices within our federal government, making us promises for this, and promises for that. All these promises are designed to get you to vote for them. Some of them are outright lies and were never intended to be kept, while others are merely usurpations of more power, and ultimately, control over our lives---and our liberties. Again, I quote Thomas Jefferson, "A government big enough to give you everything you want, is strong enough to take everything you have."

If you don't believe our government is capable, or has the desire, to strip us of those liberties then you haven't been paying attention very well. Need I remind you of what former President Bill Clinton said in a press conference in New Jersey in 1993, "We can't be so fixated on our desire to preserve the rights of ordinary Americans..."

If, on the other hand, you have been paying even the slightest amount of attention, you may be asking what can be done about these infringements of our liberties.

At this point in time, not much as long as people continue to blindly follow political parties for whatever reason they may have. When I hear people say that we have to vote for this candidate so that the other candidate does not get elected, I feel as though our situation is hopeless. When I hear that people will not vote for a third party candidate because, 'he cannot win', I lose even more hope.

Our nation got to the point it is because we allowed it to. We voted for the people who abused their positions and violated the trust we placed in them to uphold the Constitution. As long as we blindly follow a candidate, like rats following the Pied Piper, nothing is ever going to get any better. In fact things will continue to get worse until we select men, or women for that matter, of principle who will defend and protect our liberties at all costs.

There is only one alternative, and it can be found within the Declaration of Independence, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."


The Zombieslayer said...

Yes. I've tried to explain this on many occasions. Some people get it, but for some, it goes right over their heads.

We are born Free, but government, and other institutions try to enslave you.

Since all these politicians took an oath to defend the Constitution, should we imprison them for Treason?

neal said...

Zombie-Funny you should mention treason. I am working on a book and am currently covering the Supreme Court.

Section 3 of Article 3 of the Constitution covers treason, which states,

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

In doing research for the subject I came across an interesting quote from a case by the court regarding the subject of treason.

In the case of Ex parte Bollman, 8 U.S. (4Cr.) 75 (1807) the Court ruled, ''Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . . must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.''

Unfortunately, there has not been a Supreme Court case in which an elected official was ever convicted of treason. The closest thing to it was when members of Congress were expelled from office.

Over the course of the entire history of Congress, only five members have been expelled, Rep. John B. Clark, D-Missouri., in 1861 (for taking up arms against the government of the United States), Rep. John W. Reid, D-Missouri., in 1861, (for taking up arms against the government of the United States), Rep. Henry C. Burnett, D-Kentucky, in 1861 (for supporting secession by the Confederate States of America), Rep. Michael "Ozzie" Myers, D-Pennsylvania., in 1980 (for accepting money from undercover FBI agents posing as Arab sheiks seeking favors from Congress in the Abscam scandal), and Rep. James A. Traficant Jr., D-Ohio, in 2002 (for taking kickbacks from employees, encouraging the destruction of evidence, soliciting bribes and other gifts from businessmen and filing false income tax returns.)

Unfortunately I am not a legal scholar. I do not know what the term for a person who violates an oath of office is. I know it is not perjury, as that is lying under oath. I am sure whether it does not qualify as simple official misconduct. You would think that there was some sort of provision in the U.S. Code to handle situations such as this.

If anyone else has any info regarding this subject I would greatly appreciate hearing from them.