Part Three: The Constitutional Powers of Congress

"Let the [federal] government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves; and our [federal] government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants."

-- Thomas Jefferson

Under Article 1, Section 8 of the U.S. Constitution, Congress has the specific power to

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This is the famous, or infamous, "Commerce Clause" of the Constitution, known in the last century as the pry bar with which Congress has inserted itself into various areas of American life where it has no business. Thanks to a "progressive" interpretation of what is and is not "commerce," our government has strayed far beyond the intent of the Founding Fathers.

A key word is "regulate," which in the original sense meant "to keep regular." Simply put, to make sure that commerce continues to operate in a regular manner. The assumption of the Founders was that economic activity was governed by the unfettered choices of free individuals, working in a "for profit" environment. Capitalism, if you will.

A key principle of the Founders is that government may only exercise those powers granted to it by the people, and the people can only grant to a government powers they actually have as individuals. Regulating commerce is something individuals could do for themselves, but it made sense to "loan" this responsibility to the government for the sake of efficiency, because foreign governments and large individual states would more likely comply with a federal government enforcing the sovereign will of the individuals as a whole.

Simply: The federal government was charged with protecting an individual's right to buy and sell, without undue coercion or interference from anyone, including any government!

Why is a distinction made between Foreign Nations and "among the several States"?

While the federal government itself did not "trade" goods with foreign nations, its citizens did, and one of the responsibilities of the new national government was to make sure that American citizens were not poorly treated by foreign laws. The government thus monitored the conditions of trade and tried to create a level playing field if a particular government began imposing high import taxes (tariffs, duties or levies) on American goods.

Yes, we've been arguing the distinctions between fair trade and free trade for a long time.

Additionally, the new federal government realized that the imposition of tariffs at American harbors was a significant source of tax revenue. The Founders assumed that Congress would be smart enough to keep import tariff rates balanced so as not to make foreign trade irregular or unproductive. This hasn't always worked so well in practice. [See "Smoot-Hawley Tariff Act of 1929".]

Yet Congress was given the power to regulate foreign commerce because that's what national governments did. So far, so good.

Keeping commerce "regular" among the several states principally meant that the federal government forbade the imposition of tariffs and import or export duties between the states. It was government's job to make sure that the citizens of Oklahoma could trade with citizens in Kansas or Texas without penalty. You also did not want a group of states ganging up on another state by erecting trade barriers.

This was no small concern. In the early days of our Republic, there were many who thought each State should "go it alone," be totally sovereign. It was too much of this "go it alone" attitude that doomed the Articles of Confederation, the first constitutional government of the fledgling United States. The central government was weak to the point of anemia, and conflicts among regions were common.

The new Constitution took care of that by carefully creating a government of limited overall powers, separated the executive, legislative and judicial branches of the government and made absolutely sure that each branch could throw a wrench into any power grabs by any other. Yet, if the branches of government "played nice," then they would perform their constitutionally mandated roles smoothly and the people would be well served.

The Progressive movement has (successfully) expanded the scope of federal government by promoting a liberal interpretation of the commerce clause, claiming that any human activity that might in some remote way have an impact on interstate commerce is thus covered under potential federal regulation. A couple of unfortunate Supreme Court cases have upheld this view, even though it runs counter to the Founders vision of America and defies logic.

This is why Congress sees fit to authorize "Cash for Clunkers," which transfers money, via taxes, from one set of Americans to another based on their "need" to get rid of gas-guzzling automobiles. There is nothing in the Constitution that empowers this, save a ludicrous misinterpretation of the "commerce clause." The Founders would be aghast, as so should we.

An even worse example, however, is the Executive branch takeover of General Motors and its heavy-handed negotiated takeover of Chrysler in which majority ownership was stolen, through a strong-armed bankruptcy proceeding in which the government acted as the 600-pound gorilla in the courtroom, from those who owned stock and given to the United Auto Workers union (and the government).

Even if you agree that the "commerce clause" would allow Congress to legislate such an outcome, Congress was not involved. This was a naked and unconstitutional usurpation of power by the Executive branch.

I'm still waiting for someone to take a strong case to the U.S. Supreme Court. It is vital that this be overturned.

Finally, the Constitution gave the federal government the power to regulate commerce with "the Indian tribes." Sadly this became the vehicle by which the indigenous Americans were pushed out of their traditional lands, stripped of their pride and possessions, robbed of their individual liberties, confined to reservations or removed to Indian territory (now part of Oklahoma). By and large it is a tale of treachery and deceit largely white-washed by both liberal and conservative educators. It is a wonder the American Indians survived, but they have.

Today the federal government allows Indian tribes, as sovereign nations within the United States, exercise of a degree of autonomy unthinkable just a few years ago, although too often it is for the purposes of encouraging gambling and smoking, vices not necessarily conducive to a responsible citizenry. Since most of those participating are not Indians, I suppose you could rationalize that there is a certain amount of revenge taking place.

ooooooo

"Let vigorous measures be adopted; not to limit the price of articles, for this I believe is inconsistent with the very nature of things, and impracticable in itself, but to punish speculators, forestallers, and extortioners, and above all to sink the money by heavy taxes. To promote public and private economy; encourage manufacturers, etc."

-- George Washington, on the limited role of the federal government

Part Two: The Constitutional Powers of Congress

We continue today with our series on the U.S. Constitution and the powers granted to the legislative branch of government, otherwise known as "The Congress," in Article 1, Section 8:

The second provision:

To borrow money on the credit of the United States;

If the Founding Fathers could speak to us today, they might tell us they are sorry they inserted this clause into the Constitution. From the writings they left us there is no doubt that they had mixed feelings about granting the new government the power to borrow money. They realized that there would be times when it would be necessary, as it had during the Revolutionary War when men like John Adams and Ben Franklin, neither a fan of debt, were sent to Europe to obtain loans to finance the rebellion against Great Britain.

Franklin said, "Think what you do when you run in debt; you give to another power over your liberty."

Thomas Jefferson once wrote: "The maxim of buying nothing without the money in our pockets to pay for it would make our country one of the happiest on earth." True, it was Jefferson who in his first term as president arranged for the $15 million Louisiana Purchase (as much for national defense reasons as any other). But he was also an advocate of quick repayment of debt, public or private.

Passing debts from one one generation to the next, the majority of the Founders believed, was immoral. It was, in a very literal sense, "taxation without representation." The despised the government of England for the practice of perpetual debt, and they had no intentions of repeating same.

It was this climate of frugality that allowed the framers to believe that the Americans would never allow their government to get too far behind in their repayment. It was unthinkable, at the time.

It took awhile before the worst of human nature reasserted itself. For the first 125 years of our nation's history, the national debt was kept in check. Wartime borrowing was quickly paid off. After 1915, however, the national debt began to rise rapidly, grew during two world wars, and then exploded in the 1960s, '70s and beyond.

Today's growth in the national debt is truly staggering, even by modern comparisons.

So what happened?

A change in philosophy and a new source of revenues encouraged the American government to spend. The significance of 1916 should be obvious. It was the year of the passage of the 16th Amendment authorizing an income tax on individuals. Although Americans were told that only the very wealthy would pay a very small percentage of this tax, it quickly expanded until it covered all income levels at much higher rates.

This came during the Woodrow Wilson administration. Wilson was the poster child for the Progressive movement which believes that humanity is evolving and needs evolving political and social structures to help shape this growth. The Constitution, as written and traditionally understood, was and is an impediment to Progressive achievement.

To a great extent Progressives have won the modern argument on debt, which is to say that they do not see it as a threat to individual liberty because, for them, individual liberty is less important than collective action to "improve" society.

Given our nation's headlong rush to crushing debt levels, one wonders whether we could ever return to the frugality of the Founders, and what it would take to get us there. Pain, undoubtedly, but will it be any greater than the pain that is in store for us if we continue, unchecked, on our present course?

We are not only spending our children's inheritance as a nation, we are now obligating our grandchildren and theirs to paying debt service and principle on debts so massive as to be unfathomable. And if the Founders were correct about the link between freedom and frugality, I very much fear for our posterity.

What is the fix?

Returning to other parts of the Constitution which limit the size and scope of the federal government. This will mean trimming back or eliminating programs, balancing operating budgets without economy-killing taxes, and basically saying "no" to any new expansions of government activity until we begin reversing the size of our public debt.

It means saying "no" to the Progressives among us who will not stop until they have government overseeing every aspect of our lives.

Can we fix the problem?

I doubt it. We are like a heroin addict who wants to blame the drug pusher for his problem, and who sees Methadone as his solution. He doesn't want to even think about withdrawal, which is the only way way he will break free of his curse.

A deep and frightening Depression -- as ugly as it would be -- is probably our only way out of the current mess. Yet that is the one unacceptable path on which our government leaders, of both parties, will not consider. Everything they are doing right now is exactly opposite of the cure. If debt is the problem, they are telling us that debt is the solution. If over-management of the economy is the problem, they are telling us that more management of the economy is the solution.

It is madness, but the borrowing is constitutionally permitted.

***

"Whenever vanity and gaiety, a love of pomp and dress, furniture, equipage, buildings, great company, expensive diversions, and elegant entertainments get the better of the principles and judgments of men and women, there is no knowing where they will stop, nor into what evils, natural, moral, or political, they will lead us."

-- John Adams, on foolish spending.

Part One: The Constitutional Powers of Congress

Because a mind is a terrible thing to waste by not filling it with good information, the Oklahomilist begins a series detailing what the United States Constitution actually says about the limited powers of the legislative branch, otherwise known as the Congress. These are found in Article 1, Section 8, under "Powers of Congress."

They begin with this:

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;

Pay attention, class!

The Constitution was so strict on the ability to levy taxes that Congress eventually had to float the 16th Amendment in order to legally enact a personal income tax on American citizens. And that didn't happen until 1916, some one hundred and thirty years after the constitution was ratified. There are many solid citizens who believe the 16th Amendment should be repealed, as it has helped fuel the legislative ambitions of many a politician.

"Common Defence" is fairly well understood. Sadly, modern progressives attempt to define "general Welfare" beyond the original scope of the Founders. In short, "general Welfare" means that the government has enough tax money to carry out its basic duties as outlined by the constitution. That's it. The U.S. Supreme Court has upheld the Founders' definition many times over the years.

The Founders of this Republic feared a large, powerful national government. They were all too familiar with governments that ignored the individual rights of citizens, and they knew only too well that the road to governmental hell would be paved with the "good intentions" of those who crave power. So they specifically addressed what Congress could do, and then broadly asserted that anything left unmentioned was essentially "off the table."

The Bill of Rights, otherwise known as the first ten "amendments" to the Constitution, add more prohibitions to government conduct. These were added in 1791, three years after ratification.

"The way to have good and safe government is not to trust it all to one, but to divide it among the many; ... Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward [town or city] direct the interests within itself. It is by dividing and subdividing these republics, from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself, by placing under every one what his own eye may superintend, that all will be done for the best."

-- Thomas Jefferson

My Two Cents on Tax Day (It's All I Can Afford Now)

No, I'm not at a "tea party."

Yet.

But if you are there, you have my permission to notch your voice up another decibel or two.

Since the missus and I are considered "rich" by the tax code, our generous contributions to a child's college education are almost totally discounted this year. (Actually we earned about $300 over the dividing line.)

Bottom line: $1,500 due.

How can you go from an $800 refund to owing $1,500 with very little added income? Our youngest no longer qualified for that special child tax credit. (Even though he eats more than ever, and we're now paying his car payment and insurance.)

The tax code doesn't make sense. True, it hasn't made sense in my lifetime, but it's getting crazier. We need a system that doesn't penalize us when we decide to be a bit more productive. "Progressive" tax rates? Unfairness is what it is, especially when over 40 percent of working Americans now file a tax return in order to receive more money back than they paid in through the Earned Income Tax Credit. We are getting very close to the point where 50 percent of Americans will not owe income taxes at all.

That's a tipping point where, electorally speaking, we cross the Rubicon. A majority of voters have no incentive to push for tax reform, and have every incentive to vote for the politician who promises to soak the rich so that the masses can have more, more, more, courtesy of our redistributionist Uncle Sam.

As broken as the system is today, I must also add that our taxes are not that high.

Yet. It is coming. It is coming fast and it is coming hard. A nation cannot spend at the rate we are spending, and obligate itself at the rate of our current obligations, and not have the cows come home to roost. (Yes, I said cows. They are a lot heavier than chickens, for those of you who are agriculturally challenged.) We are going to see tax rates go up, and we are going to see "hidden" tax rates, also known as price inflation, on items such as energy, education, medicine, food, that will dwarf taxation.

There is little we can do to prevent it from happening except demand that our politicians CEASE SPENDING on all but the most basic, essential public services now. (Yes, I said "demand.")

Those who will not comply should be removed from office, peacefully, through the ballot box.

That means we have to have people who will vow to stop the spending trains at the federal, state and local levels. New political blood.

That means we need to develop a new generation of leaders who understand the principles upon which this country was founded. The small "r" principles of a Republic, with its checks and balances and guarantees of individual liberties, among them the right to life, liberty, private property, and the pursuit of happiness.

I am not optimistic. There are many things which must happen for us to restore our government to a semblance of sanity. But it is worth the attempt.

The path we are on leads to places we do not wish to go; the alternatives are bleak.

I still believe that a majority of Americans believe in the Constitution, although they may not understand it. The fundamental document that should guide all of our lawmaking and governmental activity remains intact. It is up to We, the People, to insist that it be followed.