Constitutional Opinion Blog

There are so many instances in which the Federal Government has usurped power; it’s hard to know where to start. It is not just the current & previous administrations that are to blame; it goes back Wilson & was worst under the New Deal. Unfortunately the plans for a time machine that I bought on the internet didn’t work out so I can’t go back to fix the past, we can only fight the fight going forward.
The most misleading term seems to be promoting the general welfare. The definition, supported by James Madison & Thomas Jefferson, is that the power to tax & spend did not confer upon congress the right to do whatever it thought best for the nation, but only to further the ends specifically enumerated in the Constitution.
An example of the original meaning comes when congress refused to fund the dredging of the Savannah River because it was located entirely in the State of Georgia, therefore only of benefit to the State of Georgia. At the same time it approved the lighthouse at the mouth of Chesapeake Bay & a bridge across the Cumberland Gap, these being interstate project of benefit to commerce. This is the same rational that gave us the Interstate Highway System.
As to the borrowing clause, George Washington stated in his farewell address;
“As a very important source of strength and security, cherish public credit, One method of preserving it is to use it as sparingly as possible; avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.”
The power to borrow is also the responsibility to maintain our good credit. By excessive spending this administration has put our credit rating in jeopardy. The amount of spending being proposed will destroy any chance we have to recover economically.
On the rules for bankruptcy clause, as James Madison Observed in Federalist #42, “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States that the expediency of it seems not likely to be drawn into question.” To allow some banks and financial groups to fail while bailing out others is not “uniform”.
On the ninth & tenth amendments, they should be read together.
The ninth was to prevent the application of statutory rule of interpretation, i.e. by including one thing you exclude all others. It was also to confirm the republican principles of the Federalist & the Anti-Federalist alike, that the people retain their communal right of self-governance. The libertarian point of view on the ninth is that it point to a set of judicially enforceable unenumerated rights (natural rights) that no government can legitimately deny. Unfortunately in 1937, the Supreme Court gave up on trying to enforce this amendment, & in 1965 (Griswold v. Connecticut) the Court twisted it’s meaning to something unrecognizable. This proves why depending on the Court to properly interpret the law is dangerous.
The tenth- reserving to the people of the states the powers not delegated to the US government- was designed to confirm the separate juridical competency of the respective states in relation to the federal governments limited powers.
When the government decides to use tax law to deal with a non- existing problem like global warming, & redistribute our wealth around the world, they have gone too far. Even if they are allowed to regulate these items under the Constitution, they cannot commit a violation while enforcing the rules. This scheme that is being proposed that would create something called "carbon credits". Each business would be told how many credits they are allowed to have by some government board. Extra credits would be given to congressmen & senators to sell to businesses that need extras. If Congress can't sell all of theirs, then the amount allocated to businesses must be too high & would be cut.
As Ronald Reagan said "The tax code should not be used to punish". But seeing as how our current congress members actually told business men that they needed to give back bonuses or the bonus would be taxed away from them, they are too stupid to know that it would be ex post facto law & laughed out of court.
The takeover of our healthcare market has no bases in the Constitution. The healthcare system can be reformed without this massive takeover. We are told the government is the answer, I say the government is the problem.

Who made them boss

Who Made Them Boss
By Allen Marino
For as long as any of us can remember, the Supreme Court has been the final decision on everything. As a minor anarchist, I ask, why?
The power which is given to the Supreme Court is defined in Article 3 of the Constitution. It does not specify how many Supreme Court Justices there should be. It doesn’t say they need to have a big building to meet in. They could meet in Chief Justice Robert’s basement.
Article 3, section 2 states, in part, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority”.
The problem with the court comes when the court acts in an unconstitutional manner. When they step out of their role as judges and legislate from the bench. When the Supreme Court refuses to decide when the federal government has stepped over the line, they are giving sanction to that action.
The Federal government has used the 14th amendment and the necessary and proper clause to justify the taking over of anything they want. Our own Congress has stated that there are no limits to its powers. The Supreme Court will not stand for the Constitution against the Federal government, since it is part of that government.
When the court found that a local government could take one persons property and give it to another, for the purpose of developing it, thereby raising the amount of taxes collectable on it, they stepped on our rights as property owners.
When a government has the power to tell you what type of toilet you can have, how much water your shower can flow, we have to say get out of my bathroom.
What do we do when the court refuses to uphold the Constitution? The purpose of the Constitution is to limit the federal government to certain areas. The 10th amendment states; 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.
What options are left to us?
We have examples of Presidents refusing to abide by the decision of the Court.
We find that President Andrew Jackson dealt with the court by ignoring it, at least on one occasion. The case is Worcester v. Georgia. In that case the court decided that the State of Georgia could not force the Cherokee to move since it was the Cherokee Nation. As such, they were a distinct community with self-government within nation of the United States, and only the Federal Government had jurisdiction. In reaction to this President Jackson stated "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." In effect he proved that the court had no power to enforce its rulings.
Lincoln even tried to have the Chief Justice Tandy arrested for sedition.
My research also finds that during reconstruction, in 1868, the Federal Government enacted a law forbidding the Supreme Court from holding the laws against the South as unconstitutional. The Supreme Court went along with it.
If we take the Virginia and Kentucky Resolves, we have the option of nullification. At the time, the belief was that the states could decide if something was unconstitutional and refuse to allow that law to take effect. I have to believe that since they were written by Jefferson and Madison, they might have known what they were talking about.
Since some people disagree with the principle of nullification, we are left with the states suing the federal government for overstepping, but that still leaves it up to the court to rule against the fed.
The other option is for congress to pass a law allowing whatever the court has overturned. But if the law in question violates the Constitution, it would mean passing an amendment to the Constitution, which takes quite some time.
This is why it is so important to get good people on the court in the first place. It has long been the habit that conservative justices retire when a Republican is in office, just as liberal justices only retire when a Democrat is in office. This means that the only time there is a shift in the makeup of the court is when a justice dies in office. Under the Constitution, the Supreme Court was supposed to be above politics; unfortunately we put people on the court, not Gods.