The Three Clauses That Have Caused Much Mischief

The Founders wanted to bequeath to posterity a straightforward government that inhibited the abuse of power. Their written words remain clear. Certain politicians and judges have skewed their meaning to do what they want, but most of the harm can be attributed to three clauses:

1.         The necessary and proper clause,

2.         The commerce clause, 

3.         And the general welfare clause.

It is nonsensical to assert that the Founders meant for any of these clauses to license general national authority. 

Happy Birthday, Mr. Madison

March 16, 2014 marks the 263rd birthday of James Madison. 

In his later years, James Madison protested being referred to as the Father of the Constitution. He said the document was not “the off-spring of a single brain.” Our Constitution was actually the off-spring of fifty-five brains, although none were as potent as Madison’s. James Madison was arguably the most important Framer—before, during, and after the Constitutional Convention of 1787.

James Madison

Before the Constitutional Convention

In 1786, the country was at peace, but struggling. Congress called for a convention at Annapolis to offer amendments to the Articles of Confederation, but the meeting never convened due to the lack of a quorum. James Madison and Alexander Hamilton made a pact to promote another convention for the following year in Philadelphia.

The Happiness or Misery of Millions Yet Unborn

 (Excerpt from Principled Action)

The truly exceptional work in the founding began after the war for independence was won. During the Constitutional Convention , George Mason wrote, “The revolt from Great Britain and the formations of our new governments at that time, were nothing compared to the great business now before us; there was then a certain degree of enthusiasm, which inspired and supported the mind; but to view, through the calm, sedate medium of reason the influence which the establishment now proposed may have upon the happiness or misery of millions yet unborn, is the object of such magnitude, as absorbs, and in a manner suspends the operation of the human understanding.”

The writing and ratification of the Constitution made the United States of America unique. The origins of our republic were not by the sword, but through the calm, sedate medium of reason. There was a long and bloody revolution, but four years of peace had calmed the infant nation before the Founders collectively sat down to debate the design of a republic for millions yet unborn.

Time Magazine: “Does It Still Matter?”

“Let us not make it a blank paper by construction. ... If it is, then we have no Constitution.” Thomas Jefferson

“Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?” James Madison

The cover of the 10th Annual Time Magazine History Issue from a couple years ago shows the Constitution being shredded under the title, “Does it still matter?”

Richard Stengel, Time’s managing Editor, opens his essay with these words, “Here are a few things the framers did not know about. World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga."

Commentary—As California Goes, so Goes the Nation?

If the citizens neglect their duty and place unprincipled men in office, the government will soon be corrupted. — Noah Webster

My wife and I are vacationing in Southern California. The warm and sunny weather has made a perfect respite from the storms lashing our home in Nebraska. We both grew up in California, but moved out-of-state twenty-five years ago. We weren’t fed up with the place. A quarter century ago California was still livable. Actually, California is still livable, as long as you have piles of cash and a fondness for government.

Beltway elites like to fixate on a couple botched 2010 Senate races, but in truth that election was a rout for progressives. Republicans captured an additional 63 seats in the House of Representatives to win the majority, the largest midterm seat change in seventy years. Republicans gained 6 seats in the Senate, but not enough to gain control. Republicans won a record 680 additional seats in state legislatures. Five states saw both chambers switch from Democrat to Republican. In four additional states, Republicans flipped one of the chambers to give them control of both chambers. In three more states, Republicans increased their control in both houses, and in four states they picked up one chamber to split control of the legislature. Republicans also saw a net increase of six governorships to gain a national majority.

The Founders on Limited Government

Governments govern … which means they exercise power.

James Madison wrote, “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” 

Fear of an overly powerful government was a basic principle of the Founders. They firmly believed liberty could not exist with unrestrained government.  Many modern Americans find this belief odd or quaint. After all, a powerful government is needed to right all the wrongs in this world. And there are so many wrongs. Certainly benevolent rule is preferable to wrongs perpetuated on innocent people. Except all-powerful government has been the norm throughout history … and people have been duped, subjugated, robbed, imprisoned, and even murdered by governments.

The Founders weren’t paranoid; they came by their fear of power through personal experience and their study of history. They believed governments oppress and liberty depended on decentralized authority and potent restraints on the abuse of power.

To prevent the government from becoming overly powerful, the Founders used a number of techniques:

• Enumerated powers
• Three branches of government with power balanced between them
• Each branch was given checks on the exercise of power by the other branches
• A federal system with the states acting as a check on the national system
• Different terms of office for elected and appointed officials
• Limited taxing authority (Superseded by the 16th Amendment)
• A list of things the government could not do ... commonly called the Bill of Rights

The Founders on Excessive Government Power

The Founders distrusted overly strong governments.  That’s why they engineered a limited republic. Today, Americans seem to turn to their government to validate and protect real and presumed rights, and increasingly rely on government to guarantee the substance of life.  Many modern Americans embrace national authority and fight to enlarge governmental powers.  The Founders would be appalled.

What would the Founders think about growing government power? Here is what they said in their own words.

In our governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the constituents. Wherever there is an interest and power to do wrong, wrong will generally be done. – James Madison

Constitutional Dichotomy

“What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established.” Constitutional delegate William Paterson, author of the New Jersey Plan

What does the Constitution mean? What is its purpose? Is it meant to be followed verbatim or is it a living document? With a few inconsequential exceptions, all Americans revere the Constitution. But people see it differently. Very differently.

National Constitution Center 

Perspectives on the Constitution generally fall into two classes.

Commentary—A Truly Ugly Precedent

“It has long, however, been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary;...working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” Thomas Jefferson

It’s actually very seldom that a Constitutional issue is pure black and white. Home Building & Loan Association v. Blaisdell (1934), was one of those rare cases. In an attempt to stem home and farm foreclosures, Minnesota passed a law which allowed a mortgagor to pay court determined rent that was set well below the contractual mortgage amount. The mortgage holder could take no foreclosure action while the rent was being paid.

The Constitution reads, “No state shall pass any law impairing the obligation of contracts.” During the Constitutional Convention in 1787, foreclosures were rampant, and several states had passed laws that impaired contracts by forcing debtors to accept purposely inflated state-generated paper money as legal tender. The result of these laws put a stranglehold on credit markets, deepening difficult economic times. The Framers didn't want this to happen again. Their intent—and the wording could not be clearer—was to preclude the exact type of action that was taken by Minnesota.

How to protect our rights

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Declaration of Independence.

As reflected in the Declaration of Independence, and other writings of the period, the Founders believed that rights came from God, not the government. The Founders didn’t believe that governments bestowed rights, nor did they believe governments were an agent to protect rights.

When the Constitutional Convention convened in 1787, the delegates had to figure out how to protect rights and personal liberty from an oppressive government. They knew that rights were fragile. They can be suppressed by force, gradually eroded, or simply lost through neglect.

The original Constitution didn’t include a Bill of Rights. The delegates didn’t believe one was necessary. In their mind, rights were not protected by words, but by limiting governmental power. Montesquieu and Hume advocated separation of power into three equal branches, with each branch having potent checks on all of the other branches. Although this was a well-established theory at the time, no national government was designed along these principles, and existing state constitutions gave overwhelming advantage to the legislature.  Delegates to the convention believed that if they could architect a system consistent with the separation of powers doctrine, give the national government only enumerated powers, and effectively set up the states as checks on the national government, then the national government wouldn’t be able to trample rights or intrude into peoples’ lives.

The Founders on Power

The Founders distrusted overly strong governments. That’s why they engineered a limited republic. Today, Americans seem to turn to their government to validate and protect real and presumed rights, and increasingly rely on government to guarantee the substance of life. Many modern Americans embrace national authority and fight to enlarge governmental powers.

The Founders would be appalled.

“In our governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the constituents. Wherever there is an interest and power to do wrong, wrong will generally be done.”—James Madison

“A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”—James Madison

“No wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”—George Washington

“The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”—James Madison

James Madison’s Worst Nightmare

“There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”

Madison believed the greatest threat to democracy was factions, what we call special interests. This wasn’t a theory; it was an observation he made by studying the demise of democracies down through the ages.  If a faction, or a coalition of factions, gained control of the levers of government, then democracy would collapse on itself—usually sooner, rather than later.

To protect America from this threat, Madison and the other Framers devised a limited republic instead of a democracy. Elected officials would make laws, not the people at large. This put a buffer between unbridled passions and lawmaking. A republican form of government would help, but the true shield would be enumerated, balanced, and decentralized powers with potent checks on abuses. The Framers believed that if they could harness government powers, they would reduce the risk of tyranny. This design of the Framers worked effectively for over two hundred years.

A Danger Greater than Factions

As much as Madison wanted to protect the nation from factions, there was something he feared far more than factions—attempts to eliminate factions.

Factions cannot exist if people do not possess the freedom to form and express opinions. In the above quote, Madison was being facetious with his second method of removing factions. He wanted to emphasize his point that liberty is essential to the existence of factions, and factions are a natural byproduct of a free people.

Democracies can be destroyed by factions; but eliminating the threat requires the withdrawal of the freedom to hold an opinion contrary to the public mood. It may sound like a Catch-22, but the Framers had an answer: let factions thrive, but craft a government that would be enormously difficult to capture as a prize.

We have veered from the Framers design, and now there are few restrictions on federal powers. Constitutional checks and balances are tattered. It may now be possible for a group of determined activists to gain control of an unfettered national government.

Constitutional Speed Bumps

“The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Thomas Jefferson

To a degree, each branch of the national government operates in slight fear that another branch will chastise or even overrule its actions. This was an intended consequence of the design. Madison wrote in Federalist 51, “the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”

In Madison’s opinion, liberty can only be protected by power restraining power. The Constitution doesn’t contain any language preserving the boundaries of the three branches. It is up to the three branches to defend their independence with their assigned powers.

Let’s take a look at the checks between the three branches, starting with Congress.

Are the Founders Worthy of Our Admiration?

“Threading an idea into the slipstream of politics, then into government, then into history ... is a craft which I have since come to consider the most important in the world.”  Theodore White, In Search of History

The Founders of the United States lived over two hundred years ago in a completely different world. Some dismiss the Founders by saying that most were wealthy and many owned slaves. Let’s leave aside for a moment whether those are valid reasons to dismiss the Founders. These criticisms may be true for some of the more prominent Founders, but they are woefully misleading when applied to the great body of people who committed everything to the idea of self-government.

The Founding of this great nation was unique. Up until 1776, with a few brief exceptions, world history was about rulers and empires. The American experiment shook the world. Not only did we break away from the biggest and most powerful empire in history, we took the musings of the brightest thinkers of the Enlightenment and actually implemented them. Our Founding was simultaneously an armed rebellion against tyranny, and a revolution of ideas—ideas that changed the world.

For our purposes, let’s define the founding as extending from the Stamp Act through the first administration of George Washington. This would include the development of a revolutionary spirit, the revolution itself, a few non-war years under the Articles of Confederation, the adoption of the Constitution, and Washington’s first term, which set so many precedents. Who were the people involved in these events?

First off, it was a lot of people.

·         57   men committed treason by signing the Declaration of Independence

·         48   signed the Articles of Confederation

·         437 were members of Congress prior to the ratification of the Constitution

·         55   attended the Constitutional Convention

·         30   were members of the first Senate

·         67   were members of the first Congress

·         7     were Cabinet level or above in the First Executive

·         6     were members of the Supreme Court

John Adams, The Philosopher Rebel

“Let us dare to read, think, speak and write.”  John Adams

John Adams is best known today for a presidency cut short by the Alien and Sedition Acts. In truth, he was the greatest expert on government in the colonies ... at least until James Madison stepped to the forefront. Harvard educated, Adams was a champion of the founding principles, a firm proponent of Enlightenment teachings, and a scholar of constitutional government. He was a pious man of honor and character. Granted, he could be argumentative and self-righteous, but he was generally correct in his positions.

Adams was an early and fervent advocate for independence. He opposed the Stamp Act in speeches, articles, and a widely circulated dissertation (Essay on the Canon and Feudal Law). He served in the first and second Continental Congresses, where he was engaged in over ninety committees, many of which he chaired.  Adams nominated George Washington to be commander-in-chief, and headed the Board of War and Ordnance, which was responsible for supplying Washington’s army. He succeeded in getting an early resolution passed for independence that eventually led to the Declaration, and then served on the committee that wrote the Declaration of Independence. Twice during the war he served as an envoy in Europe. In later Years, Thomas Jefferson said that Adams was “the pillar of [the Declaration's] support on the floor of Congress, its ablest advocate and defender against the multifarious assaults it encountered.”

The United States Government vs. We the People

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”—Declaration of Independence

In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now endowed by their Creator with certain unalienable Rights. This was a world-shattering concept.

Like most revolutionary visions, this one didn't just suddenly spring onto the world stage. Ironically, the philosophical basis for self-governance came from subjects of the British Crown. John Locke, David Hume, Adam Smith, and Thomas Paine were among many who maintained that this new way of life was ordained by the laws of nature and of nature's God.

The Founders were steeped in this incendiary idea. They believed that all political power emanates from the people. This concept provides the rational for the Declaration of Independence which declared it is the right of the people to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Top Ten Reasons Government Can’t Cut Spending

“I have accepted a seat in the House of Representatives, and thereby have consented to my own ruin, to your ruin, and the ruin of our children. I give you this warning, that you may prepare your mind for your fate.” John Adams

Why is it so hard to cut government spending?

There are just so many reasons. Here're the top ten excuses carried on a 3x5 card by nearly every politician.

The Founding Principles on Powerpoint

Founding Principles from James D. Best

First Principles

Leading Journal of the Enlightenment 

The Enlightenment concepts of first principles and natural rights were important to the Founders. They served as the basis for the Declaration of Independence, the Constitution, the Bill of Rights, and many founding state constitutions and declarations. 

Interestingly, the 9^th and 10^th Amendments are imbued with the Founding Principles, oftentimes called First Principles. The amendments read:

9^th The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

10^th 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.

Forty-nine words. That’s all it took for the First Congress to articulate these founding principles:

  

1. Rights naturally reside with people—rights are not bestowed by government
2. Political power comes from the American people—the government has no claim to any power without prior and formal delegation by Americans.
3. Powers are to be dispersed, and balanced between different branches and levels of government.
4. The Constitution is a written agreement intended to restrict government.

Protecting Liberty

“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…”   James Madison

When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that the Founders believed that liberty depended on each part of the government acting as an effective check on all the other parts of the government, and that meant not only between the three national branches, but also between the states and the national government.

Patrick Henry, "Give me liberty, or give me death"

The Founders believed in limited government in the form of a representative republic. They distrusted a direct democracy, because majorities had historically taken advantage of minorities. A limited representative republic was the best form of government to safeguard minority rights. James Madison constantly preached against any system that allowed special interests (factions) to gain control of major elements of the government. He showed that throughout history, majority factions tyrannized minorities, whether those minorities were based on race, wealth, religion, political affiliation, or even geography.

Checks and balances were not enough, however. They also wanted to specifically define powers to limit the intrusion of government into personal lives. The Constitutional Convention looked at two different ways of defining national powers. They debated long and hard about whether to call out each power individually or, alternately, to list restrictions on general powers. Basically they had to decide whether to write down what the federal government could do or what the federal government could not do.