Monthly Archives: April 2012

Uncomfortable Truths or Comforting Lies: Life in 21st Century America

This is the first of a two part article on the state of American life in the 21st century.  It is the prologue for the second part which will be next week’s article.

Instead of the comforting lies espoused by elected officials and propagated by the sycophants in the main stream media, this article explores the uncomfortable truths too many refuse to discuss or even comprehend.  Sadly, but unsurprisingly, Americans are deceived and manipulated, even lied to outright, by the very people that are supposed to represent them.  Nearly every elected official offer scapegoats and straw man arguments to deceive and manipulate the very citizens they were elected to represent.

These people are not statesmen nor do they qualify as leaders.  The statesmen and leaders of yesteryear have been supplanted by ideologues well-versed in the use of sophistry.

Property

If we are the sole and only rightful owners of our lives and our bodies, then we have an individual responsibility to preserve our own lives.  We preserve our lives through the use of our physical and intellectual abilities.  In others words we produce.  In the simplest sense each person would produce the basic necessities to sustain life; food, shelter, and clothing.  Beyond the basic necessities people produce goods or services desired by others in society.  Perhaps a blacksmith created tools and wares which were desirable by others.  The blacksmith exchanged his goods with the goods of a tanner that created boots, belts, saddles and other leather products.

The exchange of goods and services was done directly (barter) or indirectly through a medium of exchange such as gold or silver to the mutual benefit of both parties.   This is the essence of free markets.  Moreover, it is a natural extension of personal and economic liberty.

Today, most people do not produce any basic necessities.  Instead people choose to produce other goods and services desired by society.  In return people are compensated with currency (money) which they use in the free markets to exchange for other goods and services.  Typically, basic necessities are procured before all other wants and desires are met.

Imagine a society that functions purely on barter.  A farmer grows crops that his family consumes and he barters excess crops for other goods and services.  The farmer may store crops to use months or years later for barter.  Likewise, someone may clean houses and in return they receive real goods or services such as food or shoes, or their automobile is repaired in exchange for cleaning services.

What happens if the farmer’s crop is destroyed, stolen, or confiscated?  The farmer is unable to sustain his self or his family.  What he produced by his own ability is no longer.  This is true of anyone that produces a good or provides a service.   If someone steals the farmer’s crop it is a criminal act.

Now, what if government comes along and takes a percentage of the farmer’s crop for their own purposes?  First, the farmer’s ability to sustain his self and his family is diminished.  Secondly, the farmer has fewer goods available to barter for other goods and services of he desires.

Money

Instead of a barter system we use money to facilitate indirect exchange for goods and services.  Goods and services are exchanged for money which is used to procure goods and services we desire.  Money is what we have as a result of our work product.  Money is the surrogate for the goods and services we produce and the medium to purchase things we need or desire.

Money, in and of itself, has absolutely no value.    The only value money has is its ability to procure things of value.  In the case of the farmer he has a real good – food.  In the case of the shoemaker he has a real good – a shoe.  When you have money it is worthless unless you can use it to buy things of value.

Money also serves another purpose.  Money serves as a store of wealth or purchasing power.  In society there are three groups of people; net producers (savers), net consumers (debtors), and net zero (one that consumes everything they produce, but doesn’t take on debt).  Net producers have excess money which is typically saved through banks or investments.  This is no different than someone under a barter system with excess goods that are stored “saved” for future exchanges.  Money functions in the same manner.  It is saved and can be used at a later time to purchase things of value.

The one key difference between money and real goods and services is the former is controlled by a central bank and can be “printed” into existence.  Whereas the later comes into existence by producing something that society wants.  Real goods and services cannot come into existence at the whim of a central banker.

Therefore, money as we know it is nothing more than an abstract view of real goods and services in the world.  Numerous problems arise due to monetary policy by central bankers.  First, bankers can print money at will.  To some this may not appear problematic.  But if real goods and services remain constant and the money supply increases then prices for goods and services rise.  More money chasing the same quantity of goods and services results in higher prices for consumers.  You can purchase less real goods and services with the dollar in your pocket.  If it now costs you two dollars for a loaf of bread when it used to cost one dollar, your purchasing power is diminished.  This is also true of those net consumers that receive money (property of a producer) via government programs such as public housing or public welfare (i.e. food stamps).  The purchasing power of food stamps is impacted by inflation as well.  If prices rise the purchasing power of food stamps is decreased.  Even the net consumers are impacted by the central planner’s monetary policy.

Simply stated, inflation makes people poorer.  Inflation is taxation without legislation.  Systematically, government can reduce wealth, savings, and purchasing power by simply increasing the money supply.  Printing money create a temporary illusion of wealth.  It cannot and does not create real goods and services and only real goods and services creates wealth and prosperity.

Debt

Deficit spending occurs when government expenses exceeds tax revenues.  Government borrows the difference.  Government has accumulated nearly sixteen trillion dollars of debt.   This debt is backed by the U.S. government which means it is backed by the people. Which means it is backed by our labor.  Which means it is backed by our property, our money.

Moreover, the government debt is denominated in the very same currency used to represent your work effort and your savings.  Your money — what you use to procure real goods and services and what you save as your store of purchasing power — is completely under the control of a few well-educated, egotistical, technocrats in Washington D.C.

Government bureaucrats and elected officials offer scapegoats to cast blame on anyone but themselves.  The rich don’t pay their fair share of taxes.  Greedy corporations are pushing wages down.  These are two of the more popular excuses used to influence thoughts and votes.  Since both the rich and corporations are a very small minority and the remainder of society represents a substantial voting block elected officials pander to the majority at the expense of the minority.

In 2008, the top 3% of income taxes filed had an adjusted gross income above $200,000.  That group paid 52% of all individual income taxes.  Moreover, corporate taxes are merely an expense item just like any other expense.  That expense is passed on to the consumer.  To believe that corporations actually pay taxes is absurd.  We as consumers of goods and services pay for corporate income taxes.

What isn’t discussed is the devastating effect monetary policy has on most Americans.  From 1800 to 1913 (year the Federal Reserve started) a dollar increased its purchasing power.  What you could buy for $1 in 1800 you could buy for 58 cents in 1913.  Now, from 1913 to 2010 the purchasing power of a dollar has decreased significantly.  What you could buy for $1 in 1913 would cost you $21.78 in 2010.  Another way of stating this is what costs you $1 in 2010 would only cost you 5 cents in 1913.

Real wages in constant dollars (i.e. adjusted for inflation) decreased from 1961 to 2011. In 2011 constant dollars, 1961 wages averaged just over $49,000 per person and 2011 wages averaged just over $47,000.  What cost you $1 in 1961 costs you $7.57 in 2011.

More importantly, people fail to understand that future tax revenue will be used for future expenses not to pay off past debt.   The debt will be paid off by past earnings that were saved by the net producers in society.  As a result of currency debasement inflation will erode, gradually, then suddenly, society’s savings and purchasing power.  In this manner, government can pay off the debt, save the system, and destroy the currency and everything else along with it.  Imagine those people that have worked their entire lives to save for their golden years and those that are currently working and trying to save, have everything destroyed, wiped out, eviscerated by decades of deficit spending and failed monetary policy.

The net effect of government intrusion into the banking system is that banks are now deemed too big to fail.  In real terms it means banks privatize rewards and socialize risks. Moral hazard is shifted from the bank to the people.  What follows are mindboggling explanations of how government acted to save the people by saving the banks.  Out of the other side of their mouths blame is placed on the banks, evil corporations, or the rich when it is simply the failed fiscal and monetary policy of the United States destroying the very fabric that holds society together.  The rich and corporations are sacrificed on the altar of rhetorical politics to avoid telling you the uncomfortable truth about the decline in real wages and purchasing power. Government circumvents their constitutional authority and violates private property rights, individual rights and liberties to simply preserve the Federal Reserve System and government itself.  Ultimately we the people shoulder the burden to pay off government debts.

Instead of telling you uncomfortable truths politicians tell you comforting lies. Government engages in extend and pretend nonsense that does nothing but exacerbate an untenable situation.   Instead of focusing on failed fiscal and monetary policy politicians distract a complacent populace with scapegoats and straw man arguments.

We have a front row seat to the modern day equivalent of Rome’s bread and circuses.

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What is Your Line in the Sand?

You know the proverbial saying, the straw that broke the camel’s back.  What acts by the federal government would you consider intolerable, oppressive, or despotic to finally say, enough is enough?  How much of your personal and economic liberty, your individual rights must be taken through government acts for you to stand up and take action?  What is your line in the sand?

Economic Liberty and Property Rights

Today, the government takes what you earn through various taxes to spend on welfare, warfare, and thousands upon thousands of so-called federal programs.  Federal, state, and local income taxes are one portion of the total tax picture.  There is also social security (Old-Age Survivor and Disability Insurance) and Medicare.  There are property taxes.  There are estate taxes.  There are excise taxes (alcohol, tobacco, gasoline).  There are sales and use taxes.  There are fees (vehicle registration, permit fees, telephone fees, etc.).

There are corporate taxes which are not truly paid by corporations but passed on to the consumer to pay.  Corporate income tax expense is just another expense like payroll, electric, or office supplies.  Those are passed on to you.

Then there are regulations enacted by agencies that result in additional expenses by corporations.  Those costs are also added into the products and services you buy.  According to the Americans for Tax Reform tax freedom day occurs around the third week of August.  That means for 2/3rds of the year you work to pay for federal, state, and local government.  The remaining 1/3rd of what you earn the government, through the good graces, allows you to keep.

Let’s suppose the government confiscated 100% of your earnings.  Government bureaucrats send you a monthly check for your living expenses.  Would you continue to work under these conditions?  What if you refused to work and government threatened to imprison you?  What if government physical takes you and puts you in a government work program and forces you to work?

Under any of these conditions are you not enslaved?  Today, if you work 2/3rds of the year to pay for government you are 2/3rds a slave.  Through the use of the law government takes whatever they decide they want.  They have no fear of reprisal.  The people foolishly believe that their government wouldn’t do this to them.  Even more naively the people cling desperately to the false hope of “getting my guy elected”.  Election after election the same strategy fails to reap any lasting rewards.

Moreover Congress’s abject abuse of the commerce clause and general welfare clause has restricted citizens by limiting economic choices.  Government tells us what light bulbs to buy, what cars we can drive, the amount of water we can use in our toilets and shower heads, etc.  In the latest attempt government has attempted to fundamental alter the relationship with the citizen by forcing citizens to enter into a contract for a product against their will.  That is the individual mandate in the Obamacare law.

Lastly, I will briefly mention government control of the economy through the Federal Reserve.  The Fed controls the money supply and interest rates.  As a result the Fed has substantial control over employment and unemployment, credit, liquidity, prices, and the value of a Federal Reserve Note.  Most importantly, the Fed and the government work hand in hand for their own ends.  Monetary policy and fiscal policy are related because annual government deficits of one trillion dollars and a public debt of fifteen trillion dollars forces the Fed to institute zero interest rate policies (ZIRP).  These policies keep the interest on the debt as low as possible but it also punishes the net producers (savers).  Since interest rates are below one percent and the real inflation rate has hovered between five and eleven percent for the past twelve years, savers are punished.  The real rate of return is negative.  People have no incentive to save.  People must either consume or they must increase their risk in other investments.

Ultimately, the problem boils down to the use of a fiat currency that serves two primary purposes; an indirect medium of exchange and as a store of wealth/purchasing power.  Government and banks need their dollars returned nominally.  Meaning they only need the dollar returned.  What the dollar can purchase is irrelevant.  We need our money returned in real terms.  That is after the real inflation rate is factored in.  Because government has run up such a large debt and continues to add trillions of debt every year, the Fed makes monetary policy decisions that favor government and the banking system while harming the saver.  The other critical factor is money itself has absolutely no value.  You cannot take a Federal Reserve Note to the bank and get anything of value. It’s only value is that it can be used to purchase things of value.

The Fed has to choose between deflation and inflation.  The Fed chooses to inflate rather than allow asset values to deflate (which increases our purchasing power).  When the Fed inflates our savings, our store of wealth/purchasing power decreases.  Just over four years ago the base money supply was roughly 800 billion dollars. Today that is roughly 2.7 trillion dollars.  There is roughly 70 trillion dollars of claims on money today.  The debt to money supply ratio is 27 to 1.  It is in the government’s best interest to inflate, but it is not in our best interest.  Eventually, this rate of inflation will accelerate as the Fed must continue to print money (directly, or by purchasing Treasury securities outright).  The current graph of the base money supply since 1913 is in the upward portion of an exponential trend.  This is the 400 pound gorilla in the room nobody wants to talk about.  This will continue to accelerate at a pace Americans have never seen in their lifetime.

Here are some revealing and salient facts.  Wages in constant dollars have dropped from an average of $49,000 in 1971 to $47,000 in 2010.  What cost $1 in 1971 costs $5.32 in 2010.  What you could buy for $1 in 2010 would have cost you only 18 cents in 1971.  From 1961 to 2010 the S&P returns were 3100% on a nominal basis.  On a real basis the returns are negative 2100%.  In real terms and constant dollar terms wages are falling, prices are rising, and our savings(store of wealth/purchasing power) is declining.

What is your line in the sand?  Precisely how far will you allow government to go before you stand up for your economic liberty and property rights?

Personal Liberty

Over many decades we’ve had a front row seat to witness the bureaucratic herd in Washington, D.C. run roughshod over our unalienable and civil rights.   Just since the 9/11 attacks the government has formed a massive security apparatus under the guise of keeping us safe.  Parts of the Patriot Act and the National Defense Authorization Act are two primary examples.  A bill was signed into law authorizing the government to arrest and detain you if you are within a certain distance of any government official under Secret Service protection.  Congress is considering a bill that would require every automotive vehicle to have a black box device (like what is in airplanes).  Congress is considering a law that would revoke your passport if you owe more than $50,000 in taxes without even a trial or a hearing.  Then of course there is the dreaded Transportation Security Administration (TSA).

Government dictates what food we can grow or consume.  The Food Safety Protection Act was passed two or three years ago which creates new regulations particularly harmful to small farmers.  Now, government has invaded our personal choices by dictating our diets or other eating habits.  The past year we’ve seen assaults on trans-fats, salt, sugar, junk food, fast food, etc.  The heavy hand of government is felt in elementary schools where student’s lunches are confiscated and children are forced to eat foods prepared at school.

Through programs like Agenda 21 and under the auspices of some phony environmental crisis like global warming or climate change our freedoms are violated.   This impacts everything from food and water choices, to transportation, housing, land use and disposal, septic systems, etc.

Government indoctrination centers, a.k.a. public schools, force children to attend failing schools.  Parents have no choice in the school their child attends.  Curriculum is dumbed down to the point that a high school education is essentially worthless.  In Carroll County, 59% of high-school graduates attend Carroll Community College and 70% of that group requires remedial English and Math.  The mere mention of anything related to God or religion is taboo.  Everything from the clothes you wear, to all aspects of behavior are regulated.  Lifestyle choices are forced into the school systems.  Children are taught how to put condoms on cucumbers.

What is your line in the sand?  How far must government intrude on your personal liberty?  Does government have to take 100% of what you earn?  Does government have to control all property?  Does government have to tell you how many children you can have, force abortions on people, or sterilize people?  Does government have to jail people without cause and deny them a right to a jury trial?  Does government have to confiscate your firearms?  Does government have to cause enough inflation to destroy your savings/purchasing power?  Is it when you have to beg the government for food to sustain you and your family?

What act(s) by government need to happen for you to finally say, enough is enough?

This is a difficult question to answer.  Experience has taught us that mankind chooses to suffer rather than alter or abolish their government.  Experience has taught us that all countries and empires that continually consolidate power into one central authority and debase their currency don’t survive.  History has a 100% record.  For some the answers may be self-evident.  For others the answers may not come easily.

Take some time and think about it.  What is your line in the sand?

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What did the Declaration of Independence Establish

This Friday, April 13th is the birth day of Thomas Jefferson.  In recognition of his birthday I thought we’d revisit the meaning of the Declaration of Independence.  On the surface the meaning of the Declaration may be self-evident, but the true meaning of many of the sentences and phrases escapes most people.

The Declaration of Independence stated to the world that the thirteen colonies were separating from Great Britain.  In other words the colonies were seceding from Britain.  The first paragraph says “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

But the Declaration embodies certain philosophical and moral beliefs essential to mankind and government.  Let’s examine each of these essential points.

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.

There is much confusion around the phrase “that all men are created equal”.  It is suggested that Jefferson meant only white people that owned property, or that Jefferson owned slaves therefore he didn’t really think or believe that all men are created equal.  These are the lies and distortions propagated through the public schools and the media.  The issue Jefferson was addressing was the divine right of kings.  Kings believed they were endorsed by God to be divine rulers over all others.  Jefferson was stating that no one person or royal class is divine and that through the Laws of Nature and Nature’s God nobody is born with this divine right.  To Jefferson this is a self-evident truth.

Moreover, Jefferson is stating that every man has certain unalienable rights endowed upon them by their Creator.  Meaning everyone has these unalienable rights. Undoubtedly, all men are created equal and possess the same natural rights under the Laws of Nature and Nature’s God.

In the next sentence Jefferson states, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

To secure our natural rights Governments are instituted by the people.  This is the basis for the concept of popular sovereignty.  The ideal that the people are the sovereigns possessing all powers that only they can delegate to government.  The people are above government.  Lastly, the people decide what powers to delegate to government.  In other words, the government’s only powers are those which are delegated by the people through their consent.  Otherwise, the government has absolutely no power over the people.

In the next sentence Jefferson states, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and 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”.

If at any time, any form of government instituted by the people through their consent becomes destructive to securing mans’ unalienable rights, the people always retain the right to alter or abolish the government.  This reinforces the concept of popular sovereignty and the people can always alter or abolish their government.  This is not an act of treason, terrorism, or extremism.  Rather it is a moral right and duty of the people.

In the next sentence Jefferson states, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”

This means that history has shown that the people are more inclined to suffer some degree of evils and abuse rather than altering or abolishing government, and that government shouldn’t be changed merely on a whim – light and transient causes.

In the next sentence Jefferson states,  “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Jefferson is making the argument that these are not light and transient causes and in fact there has been decades of abuses and usurpations by the British Crown to reduce the colonists under absolute despotism.  He reiterates it is the right and the duty of the people to alter or abolish such government and to institute a new government for their future security.

In the next two sentences Jefferson states, “Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

Jefferson has said the colonies have suffered long enough and now is the time to alter their government by separating – seceding – from Great Britain.  After this Jefferson documents a long list of abuses and usurpations.  At the conclusion of the list Jefferson restates the colonies are separating from Britain.  In the last paragraph Jefferson states, “That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

Each of the thirteen colonies is a free and independent state.  The use of the term state was equivalent to a country or a nation.  Each state was absolved from any allegiance to Great Britain and all political connections between the thirteen states and Great Britain were dissolved.  Most importantly, it is clear that each of the thirteen states possess the full power to levy war, conclude peace, contract alliances, establish commerce, etc.

In summary, the Declaration of Independence is the fountainhead on which all government has been instituted.  The Declaration of Independence is the moral law of the land.  It established:

1)       The people are the sovereigns.

2)      That nobody has been ordained with powers to rule over others.

3)      All people have unalienable rights endowed upon them by their Creator.

4)      The only legitimate form of government is one instituted with the consent of the governed.

5)      Whenever any government abuses or violates the very purpose for which it was instituted, the people have the right and the duty to alter or abolish it.

6)      The people determine which powers to delegate to government.  The people — as the delegators — of said powers can retract those delegated powers.

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The Omission of the Word “Expressly” from the Tenth Amendment

Contemporaneous views on the original understanding of the tenth amendment often revolve around the omission of a single word – expressly.  The purpose of this article is to examine why the word “expressly” was not included in the tenth amendment.  To achieve the goal we must examine the Articles of Confederation and Perpetual Union and the deficiencies therein, the state constitution ratifying conventions, congressional debates regarding amendments eventually called the Bill of Rights, and some early Supreme Court decisions.  Moreover, an examination of the tenth amendment is incomplete without its companion ninth amendment.  Both the ninth and the tenth amendments are ones of construction and go hand-in-hand with one another.

The Articles of Confederation and Perpetual Union

Under the Articles of Confederation the general government was restricted in several ways.  One such restriction was Article II which read:  Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.  [Emphasis added.]  Furthermore, all amendments required unanimous approval from all thirteen states to amend The Articles.  These two restrictions along with other deficiencies rendered the general government incompetent to manage the affairs of the union.

The mere presence of the word expressly was literal in every interpretation of The Articles.  If the delegated power was not expressly enumerated Congress was not authorized to act.  There were very few cases where powers not expressly delegated were exceeded under The Articles.  Additionally, proposed amendments to The Articles were defeated by a small minority of states, and in several cases, a single state blocked the ratification of a proposed amendment.

For these and other reasons a convention was called to revise The Articles of Confederation and Perpetual Union.

Constitutional Convention

The product of the constitutional convention was a proposal; one without force and only for the consideration of the states.  At the conclusion of the convention three delegates did not sign the Constitution.  One of those three men was George Mason of Virginia.  Mason drafted the Virginia Bill of Rights which Thomas Jefferson relied heavily upon when drafting the Declaration of Independence.  Mason would not sign primarily because there was not a Bill of Rights included in the Constitution.

The proposed Constitution was presented to the United States in Congress assembled with the desire that Congress would speak favorably about ratification.  Debates ensued from September 26th through September 28th whether Congress could amend the Constitution prior to sending it to the states.  Richard Henry Lee proposed several amendments, including the need for a Bill of Rights, which did not pass.  The primary argument against amendments by Congress was that the Constitution would be considered an act of Congress and under The Articles must be sent to state legislatures for ratification.  Which meant the Constitution would require unanimous approval from all thirteen states.  Moreover, the mere act of amendment would favor disapproval by the states as the proposed Constitution would be viewed inferior if Congress could not send it to the states without alternation.  Needless to say Congress decided to send the Constitution to state ratifying conventions, rather than state legislatures, with a neutral position regarding ratification.  The Congress did not recommend for or against ratification.  Instead Congress agreed to remain neutral.

Congressional Debates on the Bill of Rights

Several states ratified the Constitution on the condition that a Bill of Rights be proposed and sent to the states for ratification.  Roughly two hundred amendments were proposed by the thirteen states.  James Madison reviewed all two hundred amendments and consolidated them into a list of twenty amendments.  Madison introduced the twenty amendments to the first Congress.  Eventually, Congress passed twelve amendments which were sent to the states for ratification.  Ten amendments were ratified by the states in short order.  Of the two amendments that were not ratified, one eventually was ratified by 3/4ths of the states nearly 200 years later.  There is something quite interesting about the eight amendments that did not receive congressional approval.  That is, a number of the eight amendments were restrictions on the states.  In every case, a proposed amendment that restricted the states started with “No state shall”.  This is important as these words appear in future amendments to the constitution (i.e. fourteenth amendment).

We know conclusively that the Bill of Rights applied only to the federal government.  The preamble to the Bill of Rights states; THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was a shield, erected to prevent the federal government from abusing its powers or misconstruction of the Constitution itself.  There is a substantial difference between the first eight amendments and the last two amendments.  The ninth and tenth amendments are amendments of construction.  That is, these amendments convey instructions and/or restrictions on constitutional construction.  Also, note the wording of the eleventh amendment ratified after the Supreme Court’s decision in Chisholm v. Georgia.  The Court’s conclusion contradicted the states’ understanding at the time of ratification and an amendment was ratified providing for a rule of construction on the issue.

The ninth amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.  In summary, this says that there are other rights not enumerated that are retained by the people, and any statutory law enacted within the pursuance of the Constitution cannot disparage those rights not specified yet retained by the people.  This is a latitudinal restriction on laws enacted within the enumerated powers themselves to not abridge or deny any rights not enumerated.

The tenth amendment states, “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”.  Notice that the tenth amendment excludes the word “expressly” whereas The Articles of Confederation included the word.  This omission leads some commentators to conclude there are implied powers.

In the congressional debates over the wording of the tenth amendment there were several attempts to insert the word “expressly” into the tenth amendment.  Madison opposed those efforts but not on grounds that the government wasn’t one of expressly enumerated powers.  Madison’s opposition was based on the nugatory effect the word “expressly” would have on the necessary and proper clause.  Advocates for inclusion were concerned about the abuse of enumerated powers; whereas opponents were concerned the word “expressly” would diminish or eliminate entirely the necessary and proper clause.  Madison himself reminded the House of Representatives that proponents for ratification assured the state conventions the federal government could not exceed its expressly enumerated powers.

State Ratifying Conventions

The state ratifying conventions is where delegates, recommended by the State legislatures, met to debate the proposed Constitution.  Constitutional scholar Rob Natelson’s book The Original Constitution explains that any original understanding of the constitution must come from the state ratifying conventions.  The states decided to ratify, or not, the Constitution based on representations made at the thirteen state ratifying conventions by advocates for ratification.  It was the explanations and assurances about the meaning of the Constitution that formed the basis for or against ratification.  Therefore, whenever possible, the original understanding of the Constitution must be based on the understanding of the states.

Advocates for ratification called themselves the Federalists.  While those opposing ratification, especially without amendment, were called the Anti-Federalists.  Opponents issues varied greatly but some of the more common concerns were the lack of a Bill of Rights and several clauses (such as the general welfare, and necessary and proper) would be construed to mean a plenary grant of power.  Unlike The Articles, nowhere in the Constitution did the word “expressly” appear in regards to powers delegated to the federal government.  The omission led many Anti-Federalist writers such as Cato, Brutus, and Centinel to believe construction would result in the federal government assuming and usurping powers not expressly delegated.

Several state conventions conveyed concerns regarding loose construction.  But, it was not the Anti-Federalists demanding a strict construction, it was the Federalists representations that the powers delegated to the federal government under Article I Section VIII and a few others throughout the Constitution were expressly delegated.  Further discussion revolved around the meaning of the general welfare clause and the necessary and proper clause.  A detailed discussion on these two topics is beyond the scope of this article.  To summarize, the representations made by advocates for ratification was the general welfare clause was a restrictive clause and not a plenary grant of power.  Likewise, the necessary and proper clause was included to give some latitude to Congress when acting within the foregoing enumerated powers in Article I Section VIII.  In other words, the necessary and proper clause was not a separate, definitive power; it was to allow some latitude within the enumerated powers and to avoid conflicts that arose under The Articles of Confederation due to the word expressly.

Ultimately, the representations made by advocates for ratification at the state ratifying conventions for strict construction of the constitution repeatedly assured state conventions the powers were expressly enumerated.

The following text is from a paper authored by Professor Kurt T. Lash of the Loyola Law School.

During the ratification debates Federalist proponents of the Constitution insisted that Congress had only expressly delegated power. In the New York Ratifying Convention, Alexander Hamilton declared that “whatever is not expressly given to the Federal Head, is reserved to the members.”

 In the South Carolina debates, Federalist Charles Pinckney insisted that “no powers could be executed or assumed [by the federal government], but such as were expressly delegated.”

 In a speech delivered to the House of Representatives while the Bill of Rights remained pending in the states, James Madison reminded the assembly that the proponents of the Constitution had assured the states that “the general government could not exceed the expressly delegated powers.”  Writing shortly after the adoption of the Bill of Rights, Madison again declared that, “[w]hen the people have formed a Constitution, they retain those rights which they have not expressly delegated.” 

According to Representative John Page, a member of the first Congress that drafted and debated the Bill of Rights, the combined effect of the Ninth and Tenth Amendments rendered the Tenth as if it had in fact included the term “expressly.”

In the North Carolina Convention, Archibald Maclaine defended the decision to omit a Bill of Rights on the ground that “the powers of Congress are expressly defined, and the very definition of them is as valid and efficacious a check, as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated . . . It is as plain a thing as possibly can be, that Congress can have no power, but what we expressly give them.”

According to Roger Sherman, a member of the Philadelphia Convention from Connecticut, “[t]he powers vested in the federal government are clearly defined, so that each state will retain its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign state not particularly delegated to the government of the United States.” [Emphasis original.]

Charles Pinckney address to the South Carolina House of Representatives defending the proposed Constitution said, “The distinction which has often been taken between the nature of a federal and state government appeared to be conclusive:  that in the former no powers could be executed or assumed, but such as were expressly delegated; that in the latter, the indefinite power was given to the government, except upon points that were, by express compact, reserved to the people.”  In Massachusetts, newspapers published Pinckney’s “Observations on the new federal Constitution” where he said “The powers vested in the federal government are particularly defined, so that each state still retains its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign state not expressly delegated to the government of the United States.”

Finally, in one of the most famous decisions of the Supreme Court’s first decade, Justice Samuel Chase declared that “the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not EXPRESSLY taken away by the Constitution of the United States.”(emphasis supplied by Justice Chase).

McCulloch v. Maryland

Contemporaneous views supporting broad implied and incidental powers rely upon the Marshall Court’s decision in McCulloch v. Maryland where Chief Justice Marshall advanced the concept of implied and incidental powers.  Though Marshall was present at the Virginia ratifying conventions he ignored the representations made by Madison and others that the enumerated powers were expressly delegated and relied upon a broad interpretation of the necessary and proper clause to uphold the second national bank of the United States.

While this is not an exhaustive analysis of the case the Court’s opinion included the following:

1)       The clause is placed among the powers of Congress, not among the limitations on those powers.

2)      Its terms purport to enlarge, not to diminish, the powers vested in the Government.  It purports to be an additional power, not a restriction on those already granted.

The Marshall Court’s interpretation of the necessary and proper clause was the most expansive view that could be taken.  In other words, it was not restriction whatsoever, as the Court’s interpretation was a “means” to execute an “end”.  The Court acknowledges the end to be one of the foregoing enumerated powers.  However, the broad interpretation of the means essentially renders the necessary and proper clause nugatory in the restrictive sense and acknowledges a broad application of what may be construed as necessary and proper.

The Marshall Court advocates that Congress shall determine whatever means are required to execute the foregoing enumerated powers.  That is an expansive interpretation.  Moreover, the original understanding of the necessary and proper clause was to allow discretion in executing the foregoing enumerated powers but with the provision that the means were necessary and proper.  The provision did not mean easy or convenient.  The provision did not embody personal or party ideology to advance an agenda.  It meant those implied or incidental powers must be both necessary and proper.

ObamaCare

Recently, the Supreme Court heard three days of arguments on the case colloquially referred to as Obamacare.  Let’s assume for a moment that Congress has the power to regulate the health care insurance industry under the commerce clause.  The government attorney argued the individual mandate was constitutional due to the necessary and proper clause.  That is, implied/incidental powers under the necessary and proper clause were a means to execute the foregoing enumerated power “to regulate commerce”.

If the Court rules the individual mandate is constitutional it would annihilate the ninth amendment.  The ruling would violate rights not otherwise enumerated yet retained by the people.  Those rights include the unalienable rights of association and to contract.  Even though the Court may rule Obamacare is constitutional and the individual mandate is constitutional under the necessary and proper clause, the law violates the ninth amendment.  Therefore, the individual mandate would be unconstitutional because it violates rights retained under the ninth amendment.  To reiterate, the ninth amendment provides for latitudinal restrictions on laws if they violate either rights enumerated or other rights not enumerated but retained by the people.  In my opinion, the individual mandate clearly violates the ninth amendment.

Conclusion

The Marshall Court’s opinion in McCulloch v. Maryland is used to by Congress to legislate in areas not otherwise enumerated or to legislate under the guise of broad expansive implied/incidental powers ignoring whether they are necessary and proper.  The Marshall Court expanded Congress’s powers contrary to the limiting nature of the necessary and proper clause understood at the time of ratification.

Both the ninth and the tenth amendment secured the Federalists representation of strict construction.  Delegated sovereign power was understood at the time of ratification to embody strict construction of delegated authority.  In other words, all powers not expressly delegated were assumed to be retained by the sovereign.  The ninth and tenth amendments secure the concept of popular sovereignty embraced and understood by the founding generation.

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