Matt's Thoughts: Is this what the founding fathers perceived as the future of the US?

The founding fathers, namely Washington, Jefferson, Adams, Franklin and Madison among all the others that made up the Continental Congress and the Constitutional Convention, had just finished a long and bloody revolution to rid the American colonies (states) of the tyranny of England. They wanted to prevent the same thing from developing here.

The nature of government is to have power and control over everything within their domain. This absolute power practically defines national governments. If you look throughout history, this is the expected result. Monarchs, emperors, and others who have seized power were able to do what they wanted. Taxation was the source of wealth for those who ran or were connected with the government. Many were able to kill or assassinate anyone they wished, usually without any reprisal. Even when a revolution or coup occurred, it usually resulted in one tyrannical government replacing another. The rights of the individual was only related to their connection to their standing in the government. Many others who did the day to day stuff were either slaves or not much more than that.

Although some evidence of the establishment of human rights in western history goes back through to biblical times, documents like the Magna Carta (1215) and the English Bill of Rights (1689) along with writers such as John Locke and Thomas Paine, established the concepts of human rights in the modern era. It were these influences that led to the American revolution.

Their original attempt at government, the Articles of Confederation, specifically tried to prevent a federal government with absolute power. Unfortunately, the Articles of Confederation were too weak to sustain one single country. This led to fighting among the states, barriers set up between them and an ineffective federal government which could do nothing about these problems.

The US Constitution addressed many of the problems that the founding fathers feared about a strong federal government. It did this by listing the exact powers that the federal government had. Among these powers, as listed in Article I, are:

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;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
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.

Other powers do exist in the constitution and include:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws:and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
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 attained.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
New States may be admitted by the Congress into this Union;
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment…
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Although this list seems long, it is in fact limiting. Contrary to the understood powers of national governments of the time, the constitution did not give absolute power to the government. In fact, the belief that the federal government had a natural right to have this absolute power forced the proposal of a set of amendments that guaranteed this limiting power in order for the ratification of the constitution to take place. These Bill of Rights (originally twelve but ten were ratified) is considered another document furthering the cause of human rights in the history of western civilization. These Bill of Rights amendments included:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is arguably one of the most important of the Bill of Rights when it comes to individual freedoms. Many believe that this is the foundation for the concept of separation of Church and State. This is important because the British Empire was governed by a King who was also the head of the Church of England, the official religion of Great Britain. However, one often overlooked part of this amendment is the ban of prohibition of the free exercise thereof. Modern interpretation of this amendment is that there should be no practice of religion within the confines of a governmental facility. However, this ban is in fact a prohibition of the free exercise of religion by the employees of such an agency.

Of course, other freedom expressed here are the freedom of the press, the right of a people to peaceably assemble and to petition the Government for a redress of grievances. These particular rights have been under attack lately as well (see an earlier blog posting).

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There has been a lot of debate about this amendment. Does this guarantee the individual the right to bear arms or the individual states the right to bear arms? This discussion we can have at another time.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

This amendment seems trivial to us today, but it was extremely important for the founding fathers in the late 18th century. When the British sent troops to the colonies, they would be able to enter any home they wanted to and stay there as long as they needed. This was a particular sore point, especially for those in Boston, and this amendment prevented that from ever happening in the US, at least during peace time.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This was also important for the founding fathers. Another action that was seen as the natural power of the national government was to be able to enter one's home or business anytime they wanted to. This amendment, of course, invokes a number of motions by defense attorneys across the US to try to get evidence thrown out. It was also specifically discussed concerning THE PATRIOT ACT, passed after 9/11, that allowed government officials to perform searches of one's premises without the knowledge of the owner. Unlike what has been written about this, this did not happen without a judge's approval. The government still needed a warrant. What THE PATRIOT ACT allowed was the government exercising this warrant without the target of the warrant knowing. It was an attempt to gather information lawfully without tipping off the terrorists that they were being watched.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I plead the fifth on this amendment. This prevents one from being forced to incriminate themselves. This is the basis of the Miranda rights read to everyone arrested.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This amendment guarantees a trial by a jury of our peers and due process. The attempt by many to try to establish "professional jurors" because of some obvious failures of juries to convict would be a blatant violation of this amendment. This one was put into effect because it was common practice for political prisoners of the British empire to be sent overseas to England for trial, wait years for trial, convicted without direct witness testimony and obviously with a very bias jury or judge.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

This guarantees a trial by jury for civil actions. I don't have much to say about this one.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This guarantees that reasonable bail can be set for criminal arrests and the prohibition of imposition of excessive, cruel or unusual punishments.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This one states that just because the Constitution lists certain rights, it can not infringe the remaining rights of the people of the country.

Amendment X

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 is probably the most limiting sentence in the entire constitution. It state very plainly that any powers not listed in the constitution belong solely to the governments of the individual states. What the founders were trying to do here is prevent the federal government from grabbing powers from the states, making the individual state governments irrelevant and nothing more than a branch of the federal government.

These are the basis of the limits of power of the federal government. Although the list seems long, it does leave an awful lot of powers to the states and the individual. This is what the founders of the US were attempting; To make a strong federal government, one which could effectively govern the states and the country's relationship with other countries, while preserving the powers of the states.

What went wrong? Does this really exists today?

Did our founding fathers envision a federal government that finds itself involved in every aspect of our citizens' lives? First. let's examine whether this is really true. Is the US government really that omnipresent in all of our lives? Let me provide an example:

I have in front of me a computer monitor. An ordinary object found in every home and business. How is the federal government involved? The government dictates certain things about this monitor such as:

The safety of the production facility
The pay rate of the employees
How much income the employee and the employer keeps
The safety of the products used to manufacture the monitor.
How the monitor can be sold.
Regulates how the monitor can be shipped.
Regulates how the monitor can be disposed of
Regulates what content can be shown on the monitor
The electrical wiring used inside the monitor
The emissions coming from the monitor, both in gases and in electromagnetic fields
These regulations also pertain to the shipping materials themselves as well as all the various components
How the monitor is promoted / advertised

and so on. Granted, this particular monitor was probably manufactured somewhere outside the US, but our government even controls these things outside the US because it is being shipped into the US.

I have challenged others to come up with a product or service that isn't loaded down with government interference (I mean regulations). Not that I am against regulations, but I think when the federal government is so involved in so many aspects of everyday life, that this flies against what the founders were trying to establish. They felt, for the most part, that the rights of the individual should be protected from an overbearing federal government. They did, however, provide an avenue for changing the constitution when needed. There are 27 amendments to the constitution, and I believe there should have been more.

The federal government started their natural progression for expanding their powers with the first Supreme Court rulings, and the expansion continued ever since. This expansion continued to grow but was particularly fueled by certain milestones. The most important was the 17th amendment. Prior to the 17th amendment, the Congress was set up as follows:

1. The House of Representatives, commonly called the Peoples' House, is comprised of members that are directly elected within their districts to represent the people who elected them. Their short term in office guaranteed that they would have to answer regularly (at least every two years) for their actions in congress.

2.. The Senate was comprised of two senators from every state duly appointed by the various state legislators. Their longer terms were justified so they would be less likely to be influenced by the whims of the populations or the politics of the states.

The basic difference of these two bodies was simple. The House represented the people in the federal government. The Senate represented the states (particularly the state governments) in the federal government. This changed with the 17th amendment. Now the senators were to be elected by the people. The state legislators lost their voice in government.

Is this important? Do the state governments need to have a voice in the federal government? Let's see what happened after the 17th amendment.

The 18th amendment, the only amendment so far that was declared a mistake with the passage of the 20th amendment, was for the prohibition of alcohol. What is interesting here is that the legislators knew that they could not pass any law prohibiting something. Prohibition of products was a power that only the individual states had. In order to ban alcohol, they had to change the constitution. The merits of prohibition are not what I am discussing here, but the fact that only five years after passing the 17th amendment, the congress understood, still, the limit of government regulations.

During prohibition, two other actions by the federal government are interesting to look at. They knew that the banning of anything would bring up a constitutional crisis. The enumerated powers listed above did not allow the federal government to ban anything. But what it did allow was the imposition of taxes. One of the prized tools of organized crime during prohibition was the automatic Thompson machine gun (the Tommy Gun). It became a problem, especially since most law enforcement agencies did not have any. Since the government couldn't ban them, they decided to tax them. You could only possess one if you had a special license from the federal government, which of course you had to pay for. They called this a tax and it helped in keeping the Tommy Gun out of so many people's hands. So, if this worked for the Tommy Gun, why not other things as well. Because of the prohibition of alcohol, the rise of other drugs, especially marijuana, became prominent. Instead of banning marijuana, they decided to tax it. But because it was such a dangerous product, the federal government did not even design, let alone issue, any tax stamps for marijuana. This violated other tenants of the constitution so the Supreme Court threw this law out in 1964 (?). Within a year or two, the federal government then passed a law that banned marijuana. How could they do this? How could they ban something that only a few decades earlier the congress knew that they could only ban by amending the constitution? What happened since then?

As the time from the ratification of the 17th amendment stretched on, the lack of the power of the states was weakened and weakened. Without representation in congress, the states could not stop this encroachment on their rights. As the Senate and the President kept adding their favorites to the Supreme Court, the court became more friendly to the idea of a powerful federal government, for the "good of the country." This would have freaked out the majority of the founders of this country. And the federal government became stronger and stronger.

Today, the federal government has a number of three letter agencies that do the bidding of the government such as the EPA, DEA, HUD, HHS, FCC, FAA and so many others. The basis for these agencies did not exist a hundred years ago, but somehow they do now. Should these exists? Let's explore one in particular, and it is probably one you wouldn't expect me to pick.

The Federal Aviation Authority (FAA) regulates air travel and the air space above the United States. The argument can be made that the reason the FAAs authority was not written in the constitution is because there was no powered flight in existence in the late 17th century. And of course, I wouldn't argue that. But does that justify that once powered flight began to occur, that the federal government can simply write a law granting them the power to regulate air travel? This is a dangerous and slippery slope. What other technologies lie in the future that the federal government can regulate?

According to the constitution, this power, not listed in the constitution, is relegated to the power of the individual states. Whatever the reason, the federal government can not, and should not, just write laws granting them new powers. This leads to tyranny and, in the US, to a constitutional crisis.

There would probably be two arguments that can be used to justify the existence of the FAA as it is now.

1. The federal government is tasked to provide for the common defense. Air space, just like seas and land borders, need to be protected from foreign invasion. This I understand. What I don't understand is using this argument in states like Kansas or Missouri or any other interior part of the country. It is kind of like the Army opening checkpoints in Oklahoma and saying they are trying to patrol the US borders to prevent an attack from countries south of Texas. It is an argument that stretches the imagination.

2. The federal government is tasked with regulating interstate commerce. This is my favorite. With this enumerated power, the federal government has justified almost all of the above three letter agencies, and one's with more than three letters. This is a complete misunderstanding of this power. During the Article of Confederation, one of the biggest problems was each individual state putting tolls and excise taxes to prevent products from other states from entering their states. This power was designed to specifically solve that problem. Only the federal government can regulate interstate commerce was designed, not to support legislation for this, but to prevent states from generating there own legislation for this. It was one power that was given to the federal government so that states wouldn't have it. Now, anytime there is a product or service that crosses state lines (and lets face it, that's EVERYTHING), it can be regulated by the federal government. In the 17th century, the Stamp Act riots in NYC and the Boston Tea Party were prompted by this kind of exercise of power by the crown. The amount of control the crown had on the colonists pales in comparison to the powers the US federal government has on us all today.

Now don't misunderstand me. I am not against the federal government regulating air space. Realistically, they are the only one's who could and should. But what I am against is the federal government writing a law that grants them this power. The constitution provides a process for this granting of additional powers. It's called the amendment process. Let me try to explain it as I see it. There are basically two ways for the constitution to be amended. Let's use the FAA argument here.

1. The congress realizes that they need to have the power to regulate air space above the US. They raise their collective hand and asks the states to give up this 10th amendment state right to the federal government. They do this by passing the amendment with a super majority of congress (2/3 in favor). Then the states get to have their say. They can say yes or no about the granting of this new power. If 3/4 of the state legislators approve the amendment, then the constitution is changed and the federal government is free to establish the FAA.

2. The state legislators realize that they can not effectively regulate air space above the US in a safe and coordinated way so they raise their collective hands and, with the passing in 2/3 of the state legislators, they can convene a constitutional convention, similar to the one that wrote the constitution in 1791. Once 3/4 of the members of the convention passes the amendment, it becomes part of the constitution despite what the congress and the President says in Washington.

Obviously, the first option is the only one that has been used the 27 times the constitution was amended. It doesn't mean that the other option is invalid. They are both written in the constitution and both are valid. It is designed so that the federal government is truly a government of the people, by the people and for the people.

So what should be done now to fix the problem. The first step would be to give the power back to the states as was envisioned by the founders; Repeal of the 17th amendment's provision of the senators being representatives of the people. I understand that before the 17th amendment, most senators were already elected. The legislators just simply authorized the will of the people. The repeal amendment should be crafted so that it protect the rights of the states as dictated by the 10th amendment.

Secondly, the removal of all the various departments within the government that do not fall under specific powers. With this government, this would be a broad spectrum reduction in the government. The fact that is would be such a dramatic change only underlines the problem. Such a huge part of the federal government violates not just the letter, but the spirit of the constitution. But then the congress needs to get to work fast. They can begin crafting amendment legislation reauthorizing these agencies. But this time, the state legislators and the people would have a greater say as to the encroachment of the federal government.

Matt's Thoughts

Friday, April 6, 2012

Is this what the founding fathers perceived as the future of the US?

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