Tuesday, January 15, 2008

Is The Constitution Really That Unfair?

(originally published by OpEdNews)

On Friday, January 11, Thom Hartmann debated Terence Jeffrey of the Cyber News Service, formerly the Conservative News Service. Jeffrey refers to himself as a “Constitutionalist”, an “Originalist”. His views very much remind me of the things that Ron Paul says.

It really makes no difference who’s calling himself or herself a “strict Constitutionalist”. What matters is what he or she means by that label.

Recently, in the fifty-eighth year of my life, I began seriously reading The US Constitution. I recommend that those who are young and, barring a catastrophic experience, have a good number of years in front of them study this document and other records that were created during the framing of The Constitution. Study the debates and the points of view that were expressed when Jefferson’s draft was presented to the convention.

Disclaimer: When I write that I’ve recently begun to seriously read The Constitution, one should note that the words “recently begun” are key. I’m not a constitutional lawyer. In fact, I’m not a lawyer at all. Consequently, I’m not, in any way shape or form, an expert on The Constitution of The Former United States of America (The FUSA – hopefully to soon return to its former United state).

What Hartmann and his guest discussed pretty much focused on the powers that the founders agreed Congress should have. Consequently, the discussion focused on Article I of The Constitution.

(I’ll be italicizing some sections and/or words that I personally find interesting in this beginners’ discussion of our Constitution.)

Article I, Section 1 of The Constitution reads as follows:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

According to Dictionary.com, the word “legislative” means:

1. “Of or relating to the enactment of laws.
2. Resulting from or decided by legislation.
3. Having the power to create laws; intended to legislate.
4. Of or relating to a legislature.”

So, according to the meaning of the word “legislative” as published by Dictionary.com,

“All legislative Powers (the power to create laws) herein granted shall be vested in a Congress of the United States…”

The laws that Congress may pass, according to “strict Constitutionalists”, are spelled out in the document (herein) in question, i.e., The Constitution. So, if Congress tries to create a law dealing with anything other than the powers granted them in The Constitution, the law will be, by definition, unconstitutional.

Section 2 and Section 3 merely state who may become a member of Congress.

However, Section 4 gives us a bit more insight as to what those ratifying The Constitution had in mind for Congress.

Though Section 4 deals mostly with where, when and how Congress shall assemble, there is a portion of that section which seems to give us a bit of insight.

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 chusing (sic) Senators.”

This is a small but enlightening passage from The Constitution because it gives Congress open ended permission to decide how its members are chosen. Congress can, as far as I can see, make a law stating that anyone whose name begins with the letter “A”, for example, will vote in the next Congressional race. Two years hence, those whose names begin with the letter “B” will vote.

Members of Congress would be thrown out on their ears if they tried such a tactic. After all, no matter what letter one’s name begins with, the people will not allow elections to be limited by such a random law. Anything more limiting than that would probably insight a riot.

Admittedly, that’s a very small part of a very large document, but it seems to say that Congress does have some open ended power over the states, even if it’s only in the area of electing its own members.

Other than to determine the “rules of its proceedings”, Section 5 doesn’t give Congress a great deal more power.

Section 6 merely says that members of Congress will be paid for their “hard work”. However, it does state that they cannot double dip into The US Treasury. One can not be a member of Congress and a postal worker at the same time. At least that’s what I get out of it.

A more interesting section, Section 7 talks about the passage of laws. Remember, according to Section 1, Congress is in charge of passing laws. It has law passing powers. Granted, they’re law passing powers that must be “limited” to its specific areas of responsibility, as described in The Constitution. One area, as we’ve seen, is to determine how one becomes a member of Congress.

I find the first sentence of Section 7 very intriguing.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

Congress can pass laws concerning the income of the US Treasury.

At this point, it seems that Congress has the power to raise money for The United States Treasury and, since it doesn’t exempt any specific method of “raising revenue”, it seems to be somewhat open ended.

Section 8 states, “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;”

Does this section tell us that state taxes are unconstitutional? After all, it would seem that state taxes, sales and income, thwart any chance of “duties, imposts and excises” from being “uniform” throughout the United States.

More importantly, the founders, once again, hold up the federal government of The FUSA, through Congress, as the vehicle by which funds that keep The FUSA operational should be managed.

What could the framers have had in mind with the phrase “general welfare”? Could those who call themselves “strict Constitutionalists” claim that this is so cryptic as to dismiss it?

It doesn’t state that Congress shall provide for the “general welfare” of the people of The FUSA, however. I wonder what the framers were thinking of with the phrase “United States” when referring to its “general welfare”? What is a nation anyway?

“To borrow Money on the credit of the United States;”

Again, the framers seemed to consider Congress the best money manager.

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

I italicize the word “regulate” here. I italicize it elsewhere as well because the “strict Constitutionalists” seem to scoff at the fact that Congress has the power and, frankly, the responsibility to regulate anything. The founders didn’t appear to fear using the words “regulate” and “Congress” in the same sentence, albeit a very, very long sentence.

“To establish an (sic) 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;”

Could it be that the framers meant that Congress should “establish” the Post Offices and then hand them over to private corporations? As FedEx and UPS aren’t mentioned, I’m certain that a “strict Constitutionalist” would have to answer, “No.”

“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 (sic) Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

Makes one wonder if Truman, Johnson (Lyndon, of course), Nixon and/or The Regime were/are aware of this one. Oh, that’s right, Congress told those people that it didn’t want to be bothered, so it handed them blank checks to start any wars that they wanted to start with anyone they wanted to start them at any time and in any place.

“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;”

I can see where this can be interpreted to mean that never ending war was OK, as long as Congress voted to finance it every two years. I certainly hope that the “Strict Constitutionalists” are keeping an eye on the frequency with which one of this country’s “Wars Against a Noun” is funded. Another two years pass and ch-ching!

“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;”

This is an overwhelmingly negative statement, but I wonder if the Militia could ever be called forth to ensure the “general welfare” of that illusive entity called “the United States”.

“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.

Congress is the place where laws are made which, once again, includes providing for the “general welfare” of a “nation”, whatever a “nation” is.

Sections 9 and 10 are extremely important as well.

Section 9 is extremely important to those accused of breaking the law. It contains verbiage protecting the rights of the accused.

It is also very important because it expressly declares that The FUSA must be under attack before the Congress can consider lifting the writ of habeas corpus. It does not state that Congress can overturn that protection if the Executive Branch believes that the nation may someday be threatened by rogue states which have future plans for making nuclear weapons. How could it? The founders and framers had little if any knowledge of what a nuclear weapon might be.

Again, Section 9 continues to reinforce Congress’s power to control the purse strings of the US and its Treasury.

For those who believe that the income tax is unconstitutional, the amendment to the following passage from Section 9, the 16th Amendment to the Constitution, which can be accessed by following the link, proves otherwise.

“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

Section 10, in fact, declares that, if states feel the need to raise revenue, that revenue should ultimately end up in the Treasury of The FUSA.

Maybe I’m beating a dead horse here, but I believe the founders and framers thought that money would be best handled by the Congress. They placed full faith for funding in the Congress. Can it be any clearer than in Article I of The Constitution?

Even though it doesn’t take long to get to Article V, I briefly thought, as I was reading The Constitution, that perhaps “strict Constitutionalists” were leaning on the fact that there was nothing in the original ratified Constitution which permitted its amendment. Obviously, however, Article V, indeed, does allow for amending The Constitution.

“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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Two facts would have crossed my mind had there not been an Article V.

First, I would have found it interesting, to say the least, that the first amendment to The Constitution was incorporated in 1791, when most of those who ratified The Constitution were still alive. Even if Article V didn’t exist, it would have been obvious to the most casual of observers that those who ratified The Constitution were OK with amending it.

The second was that I would not have been able to accept that the intelligent, brilliant statesmen who wrote and ratified The Constitution would have believed that they could write such a document of laws, such a rule book, as it were, with enough clairvoyance and self-confidence to be certain that they were writing rules carved in stone for a nation which might still exist hundreds of years into the future.

As I mentioned, I’m not yet a constitutional expert and may never become one. I haven’t even read the entire document, let alone studied its creation. However, I’m certain that the founding fathers could only assume that the world would be changing in the future as history had taught them that existence is dynamic. Can we really believe that these men, in writing The Constitution, were certain that what they wrote would always be appropriate and relevant and that no changes would ever be needed? Is this what a “strict Constitutionalist” believes?

Mr. Jeffrey, Hartmann’s January 11 guest, seemed to be emphatic about pointing out what is not in The Constitution. He began more than one sentence with words that were similar to, “Nowhere in The Constitution does it say….”

The obvious question is was he referring solely to the original document that was signed and ratified or was he referring to that document plus all of the amendments that have been made to that document since its inception?

Mr. Jeffrey was adamant that The Constitution gives no right to Congress to make laws protecting the citizens of the United States other than what is stated in Article I.

Again, however, I ask, “What is the United States? (for now, The FUSA)” It’s a nation.

If there were no people inhabiting the land which is referred to as the United States, would it still be a nation? Without inhabitants, who would defend it and, other than the natural resources and the land, what would there be to defend? Though the natural resources are rich in this nation and the land is, for the most part, fertile and giving, are those entities the most important entities to protect today in The FUSA?

The land and the resources in The FUSA support human life and, consequently, human beings live here. Those people, along with the land and resources, are The Former United States Of America.

It is Congress’s responsibility to provide for the “general welfare” of The FUSA, it is consequently Congress’s responsibility to provide for the general welfare of what it is that comprises this nation and that is the people, the natural resources and the land upon which those people and resources reside.

Is it the word “welfare” which is in question? Dictionary.com has a very clear definition of that word as well.

I will continue to study The Constitution of The FUSA, a document with which I should have become familiar a long time ago. Will I truly learn that The Constitution allows the government of this nation to turn its back on those in need?

As I continue to read and study The Constitution, am I really going to learn that it boldly states that those who make the laws of this nation may not make laws which help the nation’s citizens obtain and maintain life, liberty and the pursuit of happiness?

As I continue to read and study The Constitution, will I find that it states that corporations can not be told what the minimum wage is that they must pay their employees, that they can release employees from their employ at any time for any or even no good reason?

As I continue to read and study The Constitution, will I find that the federal government must ignore all of those released at random by wealthy corporations, possibly filling our streets with indigent, penniless, even dying Americans who may begin to contract and spread disease, that the federal government may not make laws stating that corporations or any employers, for that matter, may never use race, gender, ethnicity, sexual preference or other irrelevant criteria to keep the unemployed from employment and to keep those living in poverty poor, that the government has no right to ensure healthcare and decent shelter for those who are the products of the whims of wealthy corporations, their ultra wealthy CEOs and top executives?

If I continue to read and study The Constitution, will I learn that, in light of the dispassionate, unresponsive, callous and numbed government that the “strict Constitutionalists” insist the foundering fathers, with malice aforethought, envisioned, those founders expected all of this nation’s citizens to somehow have the wherewithal to afford to keep themselves and their loved ones healthy, sheltered, fed, clothed, educated, even while the wealthy maintain the right to do anything and go anywhere to protect and increase their wealth?

If the words “my country” truly represent nothing but an intangible, inexplicable idea which isn’t supported by anything more than a lump in one’s throat and a salute in the direction of a piece of cloth on a stick, then where is the patriotism in protecting that conceptual fantasy?

If, on the other hand, a nation is truly the land and the people who inhabit that land, are we to really to believe that the founding fathers defined patriotism as the capacity of the wealthy to maintain and increase their wealth by stealing the land and resources of this nation from the vast majority of its inhabitants and monopolizing the right to be healthy, free and/or happy?

<a href="http://www.buzzdash.com/index.php?page=buzzbite&BB_id=112256">Hartmann&#039s guess is interpreting The Constitution</a> <a href="http://www.buzzdash.com">BuzzDash</a>

To friendship,

“Government of the busy by the bossy for the bully.” – Arthur Sheldon

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