Centralizing Power in the Federal Government

"When we consider that this government is charged with the external and mutual relations only of the States; that the States themselves have principal care of our persons, our property and our reputation, constituting the great field of human concerns, we may well doubt whether our organization (the Federal Government) is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily and sometimes injuriously to the service they were meant to promote." – Thomas Jefferson: 1st Annual Message, 1801. – Thomas Jefferson

Daniel Webster foresaw the consequences of the path America was taking in 1806 in Concord Massachusetts. In a 4th of July speech, Webster said:

When we speak of preserving the Constitution, we mean not the paper on which it is written, but the spirit which dwells in it. Government may lose all of the real character, its genius, the temper without losing its appearance.

Republicanism, unless you guard it, will creep out of its case of parchment, like a snake out of its skin. You may have despotism under the name of a Republic.

You may look on a government and see it possesses all the external modes of freedom, and yet finding nothing of the essence, the vitality, of freedom in it; just as you may contemplate an embalmed body, whereart hath preserved proportion and form, amid nerves without action, and veins void of blood.

In the Virginia Convention, Patrick Henry spoke the fears of those who did not want a strong central government when he declared that:

The government will operate like a ambuscade [an ambush]. It will destroy the state governments, and swallow the liberties of the people.

The principal means that have been used to increase federal power are:

1. Broad interpretation of the "General Welfare" clause
2. Excessive use of implied powers by Congress
3. Delegation of legislative powers by Congress
4. Excessive use of the executive order

Let's go through these, one by one:

1. Broad interpretation of the "General Welfare" clause

   The words "general welfare" appear twice in the Constitution; in the Preamble, and in Article I, Section 8. It is generally agreed that this term in the Preamble indicates merely that the Constitution, of itself, was intended to promote the general welfare of the United States.

   The same words in Article I, however, have been the subject of general disagreement for 175 years.

   Article 1, Section 8, starts:

   The Congress shall have power To levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; ...

   Section 8 continues with seventeen more paragraphs which delegate specific powers to Congress.

   The problem involved in interpreting Section 8 is to decide whether Congress has power to lay and collect taxes to provide for the general welfare:

   • Only to carry out the purposes and functions stated in the other seventeen paragraphs of this Section, or

   • To carry out any sort of function which Congress may decide on, as being for the general welfare.

   When the Constitution was first written, some of the States and people objected strongly and wisely to the "general welfare" term in this Section. They realized that interpretation would be possible, and that his left a door open through which men in Government might increase their own power dangerously. So James Madison, one of the authors of the Constitution, answered these fears in The Federalist, No, 41, by pointing out that Section 8 is a single sentence. The eighteen paragraphs in it are separated by semicolons; the various clauses are separated by commas.

   He goes on to say that this Section clearly gives Congress power to provide for he general welfare only in the specific ways stated in the balance of this one sentence.

   Madison's interpretation is the one which we believe to be correct. It is the one which agrees with the fundamental American principles and the obvious spirit of the Constitution as a whole: to limit the powers of the central government. The spirit and purpose of this Document most clearly was not to grant general, broad powers to tax and spend.

   Alexander Hamilton, however, held the opposite view, which he expressed in The Federalists, Nos. 30 and 34. The Supreme Court settled on Hamilton's interpretation in 1936, in the case of United States vs. Butler (297 U.S.1), with the ruling that the first paragraph of Section 8 (quoted above) grants the power to tax and states the limitations on this power: that the succeeding paragraphs are grants of legislative powers which do not limit the taxing powers.

   Thus the door was opened wide for more taxing, more and more spending, and ever increasing power in the hands of our employees who staff our Federal Government. Even the word "general" has been distorted. Money is being doled out to particular individuals and groups, with the feeble excuse of giving welfare to the United States as a whole; whereas, actions of this kind always damage the general welfare.

   Clarification is needed and promptly

   Clarification is possible – not by well intentioned laws or resolutions passed by Congress – but by amending the Constitution. This is the only reliable and enduring way, as provided for in the Liberty Amendment.

   The Founders believed that for people to have liberty and enjoy their rights, governments must be limited and restrained. Governments, they believed, are necessary, of course, but only necessary because men without government would do violence to one another. The strong would prey upon the weak; the clever would take unjust advantage of others; disorder would prevail. Man is a fallen creature and must be restrained from harming others. But governments are made up of men as well, and those who govern are given unusual power over others. It is especially important, then, that government be limited and restrained.

   Madison observed; if men were angels, there would be no need for government. And if they had angels to govern them, there would be no need of limiting the government. But those are not the conditions that prevail; there are fallible men to be governed and fallible men to govern them. That being the case the Founders believed that governments should be limited.

   John Dickinson stated that it was his conviction "that every free state should incessantly watch and instantly take alarm on any addition being made to the power exercised over them." And Thomas Jefferson maintained that "The natural progress of things is for liberty to yield and government to gain ground."

   "Power was the danger, not simply the form of government," according to Richard Henry Lee. He thought "unbridled passions produce the same effect, where, whether in a king, nobility, or a mob. The experience of all mankind has proved the ... disposition to use power wantonly. It is therefore necessary to defend the individual against the majority in a republic as against the king in a monarchy."

2. Excessive use of implied powers by Congress

   Ever since the Constitution was ratified, many people have claimed that Congress possesses many implied powers; ones not specifically delegated by the Constitution, but implied by the mere fact that it established a government.

   Congress does possess implied powers within the limitations established by the Constitution. For example, Article I, Section 8, Paragraph 13, gives Congress power "To provide and maintain a Navy" leaving it up to Congress to legislate the number of men, ships and bases the Navy shall have. This is very different from the claim that is currently advanced: that Congress has all the legislative powers that are traditional to governments.

   Following is an example of a use of implied power running far beyond the spirit and Intent of the Constitution: The third paragraph of the same Article and Section gives Congress power "To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes." This delegated power has been broadened through the years, with the sanction of the courts, to include the power to set wages and hours of work for men who wash windows of office buildings occupied by any company which does, or might engage in, interstate commerce.

   The establishment of many of the business-type activities of the Federal Government is another example of the use of implied powers or war powers, or powers to provide for the "general welfare" in any way Congress may be persuaded to take. Such broadening and abuse of powers has no justification in our opinion, under the basic law of our nation.

3. Delegation of legislative powers by Congress

   Article I. Section 1, of the United States Constitution starts off by stating:

   All legislative powers herein granted shall be vested in a Congress of the United States ...

   Nowhere in the Constitution is there any mention that Congress can delegate its exclusive power to pass laws to any other branch of the Federal Government or to any other organization. Authority to carry out the details of laws passed by Congress obviously must be delegated to officials in the Executive Branch. But this is entirely different from the actual transfer of legislative power from Congress to the Executive Branch, such as occurred in the reciprocal trade acts or in the creation of Commodity Credit Corporation in 1933 by Executive Order, under a charter by the State of Delaware. Congress did not establish this corporation until 1948, when it was given permanent federal charter.

   The evident tendency of Congress to avoid the responsibilities given solely to it, by giving blanket powers to the Executive Branch and thus adding to the overwhelming powers of that Branch, is extremely dangerous to our freedom and to the sound national economy. The only positive, constructive correction to this danger is through an amendment to the Constitution which will reduce the powers and functions of both these branches of the Federal Government.

4. Excessive use of the executive order

   Article II of the Constitution defines the powers of the presidents. It contains no general grant of powers, nor any powers to legislate. Perhaps the broadest terms are in Section 1:

   The executive power shall be vested in a President of the United States of America ...

   And in Section 3:

   ... he shall take care that the laws be faithfully executed ...

   He has no "prerogative of office" nor any special rights by virtue of being President, since all rights are reserved to people by the Ninth Amendment. He possesses only the powers delegated to him by the Constitution, since all other powers are reserved by the State governments and the people, in the Tenth Amendment.

   The erosion of the Constitution in this direction of increasing presidential powers began soon after the Constitution was written. In 1801, the Supreme Court, in the case of Marbury vs. Madison, stated that:

   By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience...whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.

   This opinion came close to the ancient doctrine that all powers belong to the ruler, by divine right or some other superstition; that the ruler may grant specific powers and privileges to his subjects, but he retains all others for himself. It was this ancient doctrine, destructive of the best interest of all people outside the ruling group, which our forefathers tried valiantly to eradicate from the basic law of all the governments in the United States.

   This last proposal is the exact reversal of the American idea as expressed in the Constitution and the Bill of Rights. Instead of being delegations of limited powers, the Documents are nothing more than lists of a few prohibited powers, according to the Attorney General in 1944. It was that opinion which furnished the spark for the creation and development of the Liberty Amendment.

   "A ... chief [executive] strictly limited, the right of war vested in the legislative body, a rigid economy of the public contributions and absolute interdiction of all useless expenses will go far towards keeping the government honest and unoppressive." – Thomas Jefferson to Lafayette, 1823.

This discussion has offered only the barest outline of the actions of Congress, the Executive, and the Judiciary in eroding the Constitution by increasing and centralizing federal power. We recommend study of the Constitution of the United States.

Dangers

Dangers to economic freedom, and to all other spheres of freedom, arise when these Documents, our bulwark of freedom, are distorted from their true meaning; so that implied powers and the prerogative are abused – when they are used wholesale to meet demands from pressure groups, or in interventionist attempts to control greater private production of goods and service which have been achieved as a result of the initiative and creativity of private enterprise.

The dangers are doubly great because:

• There are always men in government ready to seize new powers and functions. A step in that direction is easily and quickly taken.

• Once a government has taken on a new activity without immediate and effective challenge, a precedent has been established. Even if this power is relinquished, the precedent remains for reestablishing it whenever some supposed justification exists.

When the unconstitutional activities, taken on by the Federal Government, are allowed to reach a point where those in the government do not believe there is any limit to the powers they should assume, the tyranny of total Bureaucratic Domination will have replaced our Constitution. Our Representative Republican form of government, and the freedom and individual liberty in America will no longer exist.

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