Leviathan Unchained

"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one...." -- James Madison


Today's Supreme Court ruling on the Obamacare and the Individual Mandate marks a black day in our history.  The premise of the ruling is that Congress has essentially unlimited authority to levy taxes.  But when does a tax become a fine?  The ruling upholds the idea that Congress can fine you for failing to comply with any action they dictate.

Unfortunately, we started down this path a long time ago when we embraced tax exemptions for "good behavior."  By dressing it up and calling it an exemption (instead of a penalty for everyone else) we swallowed the poisoned pill and made it part of our tax code.

Our Founding Father recognized the threat posed by the power to tax, and placed limits on it to ensure it would be used soley to collect revenue, not to enslave the populace.  Direct taxes had to be uniformly distributed, without picking favorites: "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census."

That protection was struck down by the 16th Amendment, and the tax code has been a tool for social engineering and behavior modification ever since.

So now we face a future of fines whenever we fail to submit.  Life, Liberty or Property: Pick two.

To Support and Defend

Justice Ruth Bader Ginsberg's recent commentary on the Constitution has some people questioning her ability to uphold her oath, and with good reason.  "I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012." Instead "I might look at the constitution of South Africa."

A quick glance at the South African Constitution highlights some glaring differences from our own Constitution; differences which also highlight Ginsberg's unabashed political leanings.  South Africa guarantees its people food, water, education, housing and healthcare (among other things).  South African politicians are then charted to achieve these goals using their available resources.

The South African Constitution holds to the idea of "positive rights" which the left embraces and which FDR pushed for without our own government.  The key problem of course is that the government itself has nothing which it hasn't first taken from someone else.  In order to guarantee something to someone, you must first be willing to force someone to provide it, without regard for their personal liberty.

Frederic Bastiat succinctly describes the conflict between our Bill of Rights and FDR's "2nd Bill of Rights":

"The second half of your program will destroy the first."

In fact, it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly understand how fraternity can be legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot.

Legal plunder has two roots: One of them, as I have said before, is in human greed; the other is in false philanthropy.

In fact, in order to enforce any sort of positive rights, you must first strip one group of their rights in order to satisfy another group, thereby failing the test of universality and putting to lie the idea of Equality before the law.  In doing so, the left clearly presupposes that some people are more equal than others.

Our Founding Fathers wrote the Constitution with an eye towards limiting government's potential for abuse, and by safeguarding Liberty they ensured an abundance of prosperity to their decedents.  If however we choose to sacrifice Liberty in order to gain material security, we will lose both.

The Politics of Bribery

"Many states believe there is little choice involved when the federal government has the power to tax citizens in the states, returning that money only if states comply with ever-increasing... mandates."

And that right there is the problem in a nutshell.  The Founding Fathers were clear that the Federal government would only have the power to spend money on the common defense and the general welfare and that it would only be able to raise funds expressly to pay those bills.  "General welfare" meaning for the benefit of all; not the majority, not the special interests, but for all.

Unfortunately, the result has been a government of good intentions, spending money on whatever program will help a politician curry votes.  Ironically if everyone plays beggar-thy-neighbor politics, we all get equally robbed!  The only difference is that people tend to be irresponsible with "free" money, with the predictable result of blossoming Federal spending.

The State governments themselves are even worse about helping themselves to the public trough; they get to fund programs without appearing responsible for the taxes.

The 16th Amendment allowed the Federal government to reach past the States, directly into the pockets of the citizens and then use that money to bribe the States into compliance with any number of unconstitutional mandates claiming it was just using the authority to "tax."  Fortunately more and more States are realizing that there is no such things as a free lunch and that these dollars come at a cost; to our freedom and our sovereignty.  However many people are already hooked, and the withdrawel symptoms won't be painless.  Let's hope we have the fortitude to stick it out; otherwise the States will continue to be puppets of the Feds instead of the check-and-balance they were intended to be.

Taxation With Representation

“No Taxation without Representation!” is one of the commonly referred to causes of the War for Independence.  This cry was largely rooted in John Locke’s assertion that a government forfeited its legitimacy when “any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government."

The issue of taxes and spending remained central to the political discussion after the war.  The Articles of Confederacy were purposefully weak in their ability to raise funds, to the point where it was difficult to discharge the debts incurred by the war itself.  Even so, the Constitution originally stated that "No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census" and even then the funds could only be spent "to pay the Debts and provide for the... general Welfare of the United States."

It stands that the best kind of government spending is that which is approved by the majority of the people, with the costs equally shouldered across the people, and the benefits borne by the general people as a whole.

Any time one of those three criteria is compromised, the authority to tax and spend becomes perverted.

Less preferred, but still acceptable is when the benefits are reaped by a few, but those few bear the lion’s share of the costs.  User pays.  This is rare, however, because why would someone who had the ability and desire to pay for something decide to launder their money through the bureaucracy to do so?

No, in most cases special interests want to reap the benefit while forcing others to shoulder the costs.  When the tax-and-spend power of government is no longer paid by the People on behalf of the People, it becomes tantamount to theft by majority (in the case of popular support) or theft by the powerful (in the case of a small but politically influential group).  If history is any indicator, abusing the power of taxation eventually stirs the ire of the populace and undermines the very legitimacy of the government.

Thomas Paine on the Constitution

[Excerpts from Common Sense and from Rights of Man]  

 

 In America THE LAW IS KING

 

...how necessary it is at all times to watch against the attempted encroachment of power, and to prevent its running to excess.

 

...it is necessary to consider a Constitution in both its cases: -First, as creating a Government and giving it powers.  Secondly, as regulating and restraining the powers so given.

 

[FIRST]

 

The Constitution of a county is not the act of its Government, but of the people constituting a Government.

 

...individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a Government

 

It may not be improper to observe that in both those instances (the one of Pennsylvania, and the other of the United States) there is no such thing as an idea of a compact between the people on one side and the Government on the other.  The compact was that of the people with each other to produce and constitute a Government.  To suppose that any Government can be a party in a compact with the whole people is to suppose it to have existance before it can have a right to exist.

 

A Constitution is not the act of a Government, but of a people constituting a Government; and a Government without a Constitution is power without a right.  All power exercised over a Nation must have some beginning.  It must either be delegated or assumed.  There are no other sources.  All delegated power is trust, and all assumed power is usurpation.

 

[SECONDLY]

 

...the check is the Constitution, which in effect says, Thus far shalt thou go and no further.

 

...the authority of future assemblies will be to legislate according to the principles and forms prescribed in that Constitution; and if experience should hereafter show that alterations, amendments, or additions are necessary, the Constitution will point out the mode by which such things shall be done, and not leave it up to the discretionary power of the future Government.

 

A Government on the principles on which constitutional Governments arising out of society are established, cannot have the right of altering itself.  It it had, it would be arbitrary.  It might make itself what it pleased; and wherever such a right is set up, it shows there is no Constitution.

 

From the want of a Constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and the administration of them vague and problematical.

 

[Recall that England does not have a written Constitution and instead relies on its body of common law and court rulings to determine the authority of government]

Almost every case now must be determined by some precedent, be that precedent good or bad, or whether it properly applies or not.

 

Whatever the form or Constitution of Government may be, it ought to have no other object than the general happiness.  When instead of this it operates to create or increase wretchedness, in any parts of society, it is on a wrong system and reformation is necessary. 

[Note, the "general happiness" not the "happiness of the majority."  Any Government that purposely places the burdens of society on a part or a minority in order to benefit the majority is wrong and demands redress.]

Thomas Paine on War and Taxes

[Excerpts from Common Sense and from Rights of Man regarding war and taxes] 

Our plan is commerce, and that, well attended to, will secure us the peace and friendship of all Europe; because it is in the interest of all Europe to have America a free port.  Her trade will always be her protection...

[The government appears] to say to itself: "If nobody will be so kind as to become my foe, I shall need no more fleets or armies, and shall be forced to reduce my taxes."

...taxes were not raised to carry on wars, but that wars were raised to carry on taxes.

...if [the King] rashly declares war as a matter of right, and [Parliment] peremptorily withholds the supplies as a matter of right, the remedy becomes as bad, or worse, than the disease.  The one forces the Nation to combat, and the other ties its hands; but the more probable issue is that the contest will end in a collusion between the parties, and be made a screen to both.

[It is interesting to note that our Founding Fathers expressly vested the authority to commit the military in the Legislative to avoid this situation.

Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

For the past sixty years, however, the President has had the ability to commit the Armies, while the Legislative simply approves funding.  Supposedly this is a "check" on the President committing us to wars that are not in the best interest of the Nation, however as Mr. Paine points out, this is rarely the case in practice, since once committed it would be a churlish man indeed who denied supplies to Troops already engaged in combat.]

Thomas Paine on Congress

[Excerpts from Common Sense and from Rights of Man regarding legislators]  

 ...that the elected might never form to themselves an interest separate from the electors... On this depends the strength of government, and the happiness of the governed.

...a body of men, holding themselves accountable to nobody, ought not to be trusted by any body.

When money is to be obtained, the mass of variety apparently dissolves, and a profusion of parliamentary praises passes between the parts.  Each admires with astonishment, the wisdom, the liberality, and disinterestedness of the other; and all of them breathe a pitying sigh at the burdens of the Nation.

Whether a combination acts to raise the price of any article for sale, or the rate of wages, or whether it acts to throw taxes from itself upon another class of the community, the principle and the effect are the same; and if the one be illegal, it will be difficult to shew that the other ought to exist.

It is from the power of taxation being in the hands of those who can throw so great a part of it from their own shoulders that it has raged without check.

...the portion of liberty enjoyed in England is just enough to enslave a country more productively than by despotism, and that as the real objective of all despotism is revenue, a Government so formed obtains more than it could either by direct despotism, or in a full state of freedom, and is, therefore, on the ground of interest, opposed to both.

[All courts and courtiers] form a common policy... detached and separate from the interest of Nations; and while they appear to quarrel, they agree to plunder.

What at first was plunder, assumed the softer name of revenue.

It is not because a part of the Government is elected, that makes it less despotism, if the persons so elected possess afterwards, as a Parliament, unlimited powers.

A man of moral honor and good political principles cannot submit to the mean drudgery and disgraceful arts by which such elections are carried.  To be a successful candidate he must be destitute of the qualities that constitute a just legislator; and being thus disciplined to corruption by the mode of entering Parliament, it is not to be expected that the representative should be better than the man.

Enumerated Powers in a Nutshell

I've taken the liberty of putting the enumerated powers of the Federal government in a short, easily read format...

These are our powers as individuals delegated to our representatives via the Constitution.

 

Not a very long list, is it?

The President can…

• veto laws
• issue pardons
• establish a cabinet of principle advisers
• act as military commander in chief
• ratify treaties (with the consent of the Senate)
• appoint judges, ambassadors, consuls, ministers and other officers (with the consent of the Senate)
• give the State of the Union speech
• convene or adjourn both Houses
• receive Ambassadors and other public Ministers
• take Care that the Laws be faithfully executed
• Commission all the Officers of the ....United States.....

Congress can…

• override a presidential veto
• collect taxes, borrow money & set monetary policy
• fix weights and standards
• regulate international and interstate trade
• provide for the common defense
• establish a uniform rule of naturalization,
• establish uniform laws on the subject of bankruptcies
• establish post offices and post roads;
• provide for patents and copyrights
• constitute tribunals inferior to the Supreme Court;
• manage the Capital and other Federal buildings

The Federal Courts can rule on…

• cases under the Federal Constitution, laws, and treaties
• cases involving ambassadors
• cases involving navigable waters
• cases in which the ....United States.... is a party
• cases between two or more states
• cases between citizens of different states
• cases between citizens claiming land in different states
• cases between citizens or states and foreign citizens or states

Democracy, right?

What kind of country do we live in? The long answer is that the United States is a Federal Constitutional Democratic Republic. What does that mean? For starters, we are a democratic nation. The word comes from the Greek meaning “rule by the people.” We the People have the final say in how the country is run. Ultimately, the power of our government is derived from the consent of the governed.

But we do not have a direct say most of the time; we are a republic. We elect representatives to manage the affairs of state. This has a twofold function. First, it allows economic specialization so that only some people should have to deal with the full-time problem of managing public affairs. The rest of us can pursue the real business of going to work every day producing goods, offering services, educating, defending, raising children, growing food, etc. Second, by appointing representatives we attempt to make the state less fickle. Representatives can stand their ground against the opinion of the day, so long as their overall performance is in keeping with the long-term values and attitudes of the People.

The government is also Federal, as so eloquently argued in the Federalist Papers (which every American should read at least once in High School, and then re-read as an adult). Federalism is an idea of a stratified government, where we try to solve issues at the lowest possible level. It allows for a patchwork quilt of laws tailored to fit the varied communities across the country, while at the same time guaranteeing to everyone their God-given Rights (life, liberty, property) and the means to maintain them (the Bill of Rights).

Lastly and importantly, the United States government is Constitutional. It is not “mob rule, where 51 percent of the people may take away the rights of the other 49” as Jefferson described pure Democracy. Instead it's scope is limited to the powers necessary to ensure the Rights of the People and resolve disputes between the States.

Somewhere along the way we lost sight of the original purpose of government. We had established a government to ensure we could all live together without the threat of force depriving us of our life or livelihood. But now there are those who believe we must change government into a tool of force specifically designed to deprive some and benefit others. That is not the United States envisioned by the Founders and it is not the United States I want to leave my children.