posted on Apr, 21 2012 @ 01:27 AM
In disapproval of the current state of affairs, there are various retreats people will follow. My goal here is to refute one of these retreats and
force people to start thinking of logic backed solutions. A retreat that I often see is one of "going back to the Constitution". The idea here being
that government has strayed from the Constitution and the only thing needed to rectify the state of affairs is to get government back on the path of
the Constitution. However, this is a very flawed idea, and I will now go into why.
Before I go into its troubles, I will say that the Constitution has many merits and was quite opportune. In absence of the Constitution, there would
have continued to be a confederacy which amounted to a weak union. The federalist papers go into, at length, the problems with a weak union. A weaker
union would have made for a less stable America, and less stable environments tend to hinder progress.
From a broad view, the measure of the effectiveness of a system can be taken by measuring the results of that system. In this case, if the current
state of affairs, (the results of the implementation of the Constitution), are unfavorable, then why would anyone think that resetting the system
would lead to some different outcome? However, this is certainly not enough to satisfy some, so I will go into detail about the Constitution of the
There are a couple cases where things can go awry in the US Constitutional government. For one, government can choose not to follow the Constitution.
Even if those in government were composed of all upstanding people who would do nothing contrary to the word of the Constitution, the words of the
Constitution allow interpretation that can stray from the intent of the writers. And, when the words are interpreted in either, cases where the
writers did not envision the situation, or in cases where the writers did not intend the situation, unintended powers for the federal government can
be justified by the word of the Constitution. And, additionally, the lack of a granted power is not a restriction of power.
Based on the words of the Constitution, what limits are there to the powers of the federal government? Well, there are the limitations in article 1,
section 9. Then there is the bill of rights. And, in the bill of rights, there is the line "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. ". However, this is one of those lines
that Jay, Hamilton, and Madison probably would have argued needn't be there and was there primarily for the comfort of those who feared the federal
government would take powers not prescribed for it. For example, in the Federalist Papers:
"Suppose, by some
forced constructions of its authority (which, indeed, cannot easily be
imagined), the Federal legislature should attempt to vary the law of des-
cent in any State, would it not be evident that, in making such an at-
tempt, it had exceeded its jurisdiction, and infringed upon that of the
State?" - IE, hard to imagine the federal government making inheretance tax laws.
"would it not be equally evident that this was an inva-
sion of that concurrent jurisdiction in respect to this species of tax [in regards to land tax], which
its Constitution plainly supposes to exist in the State governments? If
there ever should be a doubt on this head, the credit of it will be entirely
due to those reasoners who, in the imprudent zeal of their animosity to
the plan of the convention, have labored to envelop it in a cloud calcu-
lated to obscure the plainest and simplest truths.
Indeed, it was interpreted prior to the bill of rights with that Amendment 10 limitation clause that the federal government's powers were indeed
limited in justification to those prescribed by the Constitution, and those not prescribed by the Constitution were state affairs. Even with this
amendment, however, there is still nothing explicitly stating that the federal government should not engage in actions which are not prescribed by or
prohibited in the Constitution. In other words, it is not a breach of the Constitution for the federal government to form new powers; Instead, these
additional powers are simply unsupported by the Constitution. What does it mean to be unsupported by the Constitution? It means that the state, the
theoretical party to the Constitution, does not need to bow to the additional powers. However, if a state abides by the new powers of the federal
government, then these new powers of the federal government are as effective as the powers given by the Constitution and the remedies the people have
are either to move to a different state or to attempt to get their current state to stop bowing to the new powers of the federal government.
On a side note, in the bill of rights Amendment 1, where it states "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 prohibiting congress, not the states. The other ammendments not specifically stating
their application is towards congress are towards both congress and the states, but, in this case, the state has the power to make laws respecting the
establishment of religion, prohibiting the free exercise thereof, etc.
What method might the federal government employ to gain new powers? One method would be the creation of various overstepping laws. This leads to the
question, is congress restricted in what laws they can make? There is the "No Bill of Attainder or ex post facto Law shall be passed." statement,
the Bill of Rights, and the "but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
statement; but, the most significant restriction that appeared to me was in this: "This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the