Showing posts with label States. Show all posts
Showing posts with label States. Show all posts

Monday, September 22, 2014

Undermining The Constitution A HISTORY OF LAWLESS GOVERNMENT (Part 12)

The United States Supreme Court.
The United States Supreme Court. (Photo credit: Wikipedia)
By Thomas James Norton

It is difficult to tell which of the half score of Socialistic acts of Congress of the Roosevelt Revolution was the most far-reaching in its threat to the Republic. But the competition for evil lies between the Fascist Tennessee Valley Authority of May 18, 1933, and the Social Security Act of August 14, 1935.
When President Roosevelt signed A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, he made this comment:
"If the Senate and House of Representatives in this long and arduous session had done nothing more than pass this bill, the session would be regarded as historic for all time."
Most complete abandonment of constitutional principle
It will certainly stand apart forever as a complete departure from the Constitution as expounded by its writers,

notably Madison, afterward President, and James Wilson, later a Justice of the Supreme Court of the United States; by President Monroe in a celebrated veto message of a bill for "public improvements," the beginning of the most wasteful of all squanderings by Congress of the money of the taxpayers; by President Jackson, who vetoed every appropriation bill not clearly for national, as distinguished from personal, welfare; by Presidents Tyler, Polk, Pierce, Grant, Arthur, and Cleveland.
The "hazards of old age, unemployment, illness and dependency" are subjects (if of any government) for the police power of the States, which has been defined as having to do with "the health, morals, safety, education, and general well-being of the people."
"The Federal Constitution forms a happy combination in this respect," wrote Madison in No. 10 of The Federalist; "the great and aggregate interests being referred to the National, the local and particular to the State legislatures."
No police power was granted by the people through the Constitution to Congress.
And "Congress is not empowered," wrote Chief Justice Marshall in 1824 (9 Wheaton 1), "to tax for those purposes which are in the exclusive province of the States."[1]
States cannot abdicate their police power
It was held by the Supreme Court (219 U. S. 270,282) as late as January, 1911, that the police power inhering in the States cannot be surrendered by them.
1. While the Social Security Act gathers money from the employer and the employee, it provides that money so collected shall go into the funds of the United States and that bonds shall be issued against it. Of course, it is the taxpayers who must eventually redeem such bonds.

There is no stronger principle of American constitutional law than that forbidding the delegation of power. For a decade and a half the Newspaper has told us of powers granted by Congress to the President. It has no powers that it can grant or give away. The reports by the Newspaper were constitutionally nonsensical. Yet they affected the public mind, untaught in the Constitution, to accept as valid the abdication -- not the delegation or grant -- of powers by what came to be known as "a rubber-stamp Congress."
Abdication of constitutional duties by Congress
Congress permitted the President and his nonelected advisers to write bills, as George III sent bills to Parliament against the American Colonies, and Congress passed them. But that was abdication of power by Congress, not delegation or grant.
So, too, the States cannot part with their powers or any portion of them. Their power of police, especially, over the welfare of the people they cannot surrender, as the decision of the Supreme Court just before cited shows. Therefore, the rush of the States, like children in the street to whom a handful of coins has been thrown, to enact compliant legislation in order to get "gifts" of their own money from Washington under A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, was an unconstitutional abdication by the States of their obligations to the people. The liberties of the people were grossly transgressed.
On the police power resident in the States, Judge Cooley,

recognized half a century ago as the leading constitutionalist of his time, had this to say in volume 2 of the 8th edition of Constitutional Limitations, page 1232:
"In the American constitutional system the power to establish the ordinary regulations of police has been left to the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation by Congress."
States and Congress join in unconstitutional action
Yet that is exactly what was brought to pass by a usurping Congress and abdicating States when the scheme for social security through Washington was set up.
On the same page Judge Cooley said further:
"Neither can the National Government, through any of its Departments, or offices, assume any supervision of the police regulations of the States."
When, in September, 1787, the Constitutional Convention sent the new Fundamental Law to the States for ratification, only one of them was opposed to it from the start -- or before the start. New York convoked a convention headed by Governor Clinton which was three fourths against the proposed form of government. Some able men in other States were not wholly satisfied with the Constitution. The objections which they expressed in the ratifying conventions resulted in a Bill of Bights in addition to the limitations on power amounting to a Bill of Rights written in the original Instrument. Several delegates to the Constitutional Convention went home without signing the new form of Government. Alexander Hamilton was the only signer for New York.

Elbridge Gerry of Massachusetts, one of the ablest men in the Convention, did not sign. Edmund Randolph of Virginia and George Mason of Virginia, the author of The Virginia Bill of Rights, did not sign. Nor did William Houstoun of Georgia.
Most important of original objections to Constitution
The commonest and strongest objection was that the identity and sovereignty of the States were not sufficiently guarded. It was this objection that brought out the Tenth Amendment, to prevent Congress from invading the States.
In the convention in New York the point here under discussion was most strongly urged, namely, that the General Welfare Clause gave to Congress powers without limit. The States would eventually be swallowed by the central Government, which properly could deal only with subjects strictly national and international.
Yet the Housing Act of 1937 declared the policy of Congress to be to provide for the general welfare of the Nation by employing its funds and credit to assist the States to relieve unemployment and to safeguard health, and for other like purposes. In 1945 the Supreme Court, in an opinion by Justice Roberts (none dissenting), held (323 U. S. 329) that legislation constitutional!
Thus the objection which chiefly evoked the Bill of Rights, and especially the Tenth Amendment, went for naught.
And in 1941 the Court, in an opinion by Chief Justice Stone (none dissenting), held (312 U. S. 100) that under the Fair Labor Standards Act of Congress of 1938 the Nation can exercise police power in the States! That over-

ruled a great decision (247 U. S. 251), rendered in 1918, that Congress is prevented by the Tenth Amendment from regulating labor conditions in the States.
The first and most important grant of power
The very first grant of power is this:
"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."
In the convention in New York it was argued that the power to tax and spend for "the general Welfare of the United States" was a grant without limitation at all. That was answered by James Madison, the reporter of the Constitutional Convention, from whose notes day by day we get most of our knowledge of the course of deliberations. In the history of governments and in general fitness for his task he was second to no other man in the Convention.
Madison, along with Hamilton and Jay, was writing a series of 85 papers explanatory of the Constitution and addressed "to the people of the State of New York" to convince them that their objecting convention should ratify the new form of government. Those papers became known as The Federalist, the most brilliant work on our Constitution. They have been translated into French, German, Spanish, and Portuguese.
Objections of States cleared away by Madison
Of the argument in New York, which was made in other States too, that power in Congress for "the general Wel-

fare" was authority to do its will throughout the land, Madison wrote, evidently in anger:
"No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction."
By "stooping" Madison plainly meant that they knew better and were unfair in their opposition to the General Welfare Clause of the Constitution.
Then he proceeded to explain the language under the established rules of interpretation. Had no other enumeration of powers been made than for taxing and spending, he said, then there might be some color to the objection that Congress would be without restraint -- though that would be an "awkward way of describing an authority to legislate in all possible cases."
"But what color can the objection have," he asked, "when the specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semi-colon?"
Limitation on power of Congress to spend
That is, the grant of power to tax and spend for the "common Defence and general Welfare" is followed in the same sentence by all the other grants -- to borrow money, to regulate commerce, and so on. The first grant of all -- to tax and spend -- is inseparable in the context from all the other grants.
The power to tax and spend was granted to effectuate all of the seventeen succeeding paragraphs of clauses as well as the one in which it appears.
Madison met this question again in the very first Cong-

ress of the new Government, in which he was a member of the House of Representatives, and where he assembled and formulated twelve of the leading objections to the Constitution that came in from the ratifying conventions in the States for submission as amendments, ten of which were ratified and became known as the Bill of Rights.
First appearance of the "Subsidy"
A bill was introduced by a member from New England to pay a bounty to cod fishermen, to subsidize a private interest, as agriculture and many more private interests have been subsidized by the "New Deal." He spoke at length with great vigor against the bill. Stating that those who wrote the Constitution and those who ratified it conceived it to be not an indefinite Government, but a limited one, "tied down to the specified powers, which explain and define the general terms," he added:
"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor. . . . Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."
The consequences of the misapplication by Congress of the money of the taxpayers -- a scourge of mounting debt

and cumulative deficits -- establish Madison as a major prophet.
Hamilton, as well as Madison, rejected the contention strongly urged against the Constitution, that it left the National Government with unlimited power to do its will, and in No. 83 of The Federalist he said (italics his):
"The plan of the Convention declares that the power of Congress, or, in other words, of the National Legislature, shall extend to certain enumerated cases. This specification of particulars evidently excluded all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."
Article I, Section 8 sets boundaries to constitutional power
There is no power in Congress beyond the boundaries of those eighteen paragraphs of clauses.
Certainly James Madison and Alexander Hamilton should have known what the purpose of the Constitutional Convention was. New York, by ratifying the new form of government, accepted what they said. Other States doubtless ratified on their explanation.
Abraham Baldwin of Georgia, a member of the Constitutional Convention, said in Congress in 1798 that "to provide for the common Defence and general Welfare" had "never been considered as a source of legislative power, as it is only a member introduced to limit the other parts of the sentence." That is, it limits the purposes for which Congress can "lay and collect taxes" and exert its other granted powers.

The legal scholar of the Convention speaks
But there was another man in the Constitutional Convention, the ablest lawyer, as Madison was the ablest historian -- James Wilson, a scholar from Edinburgh and from one of the Temples in London, who explained the taxing and spending power in a course of lectures to what afterwards became the University of Pennsylvania, as Madison had done. He said in part:
"The National Government was intended to promote the 'general Welfare.' For this reason Congress have power to regulate commerce . . . and to promote the progress of science and of useful arts by securing for a time to authors and inventors an exclusive right to their compositions and discoveries."
In this way he proceeded from the Patent and Copyright Clause to explain all the other clauses in section 8 granting power. He made it very clear that Congress was to "provide for the common Defence and general Welfare" by exerting the powers granted to it in the seventeen paragraphs following the first, by which it was authorized "to lay and collect taxes."
Thus, three members of the Constitutional Convention have spoken on this point -- Madison, Baldwin, and Wilson -- and none of them thought that the General Welfare Clause, which has been construed as a limitation on the activities of Congress rather than a grant of power, authorized the Legislative Department to get into anything even remotely resembling a Quixotic adventure "To Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Security Insurance

Board in the Department of Labor, to Raise Revenue, and for Other Purposes."
General Welfare brilliantly defined by Jefferson
Although Jefferson was in Paris while the Constitutional Convention was sitting, he was in close communication with Madison and other delegates. He knew the Constitution. In a profoundly able letter to Albert Gallatin in 1817 he discussed the General Welfare Clause on which the Social Security Act was based (italics inserted):
"You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was anextension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the Federal doctrine. Whereas our tenet ever was, and, indeed, it is almost the only landmark which now divides the Federalists and the Republicans, that Congress had not unlimited powers to provide for the general welfare, but was restrained to those specifically enumerated; and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have meant that they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation on the purposes for which they may raise money.
"I think the passage and rejection of this bill a fortunate incident. Every State will certainly concede the power; and

this will be a national confirmation of the grounds of appeal to them, and will settle forever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase 'to lay taxes, to pay the debts and provide for the general welfare,' it is a mere question of syntax, whether the two last infinitives are governed by the first, or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following."
That early interpretation should have been conclusive
That exposition by Jefferson, applied to a practical case in legislation, is perhaps the most illuminating that has been made.
Six years later, Jefferson returned to the subject (italics inserted):
"I have been blamed for saying that a prevalence of the doctrine of consolidation would one day call for reformation or revolution. I answer by asking if a single State of the Union would have agreed to the Constitution had it given all powers to the General Government? If the whole opposition to it did not proceed from the jealousy and fear of every State of being subjected to the other States in matters merely its own? And if there is any reason to believe the States more disposed now than then to acquiesce in this general surrender of all their rights and powers to a consolidated government, one and undivided?"

Jefferson's reasoning applied to present-day legislation
That is to say, it was inconceivable to Jefferson that the representatives of the people in Congress could ever so far disregard our constitutional history and purpose as to strip their States of local authority by abdicating their police power through such acts as these:
The Agricultural Adjustment Actof May 12, 1933
The Tennessee Valley Authorityof May 18, 1933
The National Industrial Recovery Actof June 16, 1933
The Federal Surplus Commodities Corporationof October, 1933
The Bituminous Coal Actof May, 1935
The National Labor Relations Actof July, 1935
The Social Security Actof August, 1935

Not a State would have ratified the Constitution, Jefferson declared, had it thought such a "revolution" possible.
We have suffered a constitutional revolution without use of amendments in accordance with Article V. That has come about through what Senator Thomas H. Benton of Missouri used to call "latitudinarian construction." That form of construction has been applied to the Commerce Clause and the General Welfare Clause. No other clause in the Constitution, even with the gross twisting which the ardent "progressists" employ, could be used by them in the framing of a bill for flouting the Tenth Amendment, the great bulwark of the States.

Did President Cleveland foresee present-day unconstitutionalism?
In 1888, President Cleveland, evidently noticing the tendency of representatives of the States in the Congress of the Union to favor measures for degrading their commonwealths, gave them in his fourth annual message this lesson in constitutional law:
"The preservation of the partitions between the proper subjects of Federal and local care and regulation is of such importance under the Constitution, which is the law of our very existence, that no consideration of expediency or sentiment should tempt us to enter upon doubtful ground.
"We have undertaken to discover and proclaim the richest blessings of a free Government, with the Constitution as our guide. Let us follow the way it points out -- it will not mislead us."
In the next year President Cleveland vetoed a bill appropriating money from the National Treasury for the purchase of seed wheat to relieve the farmers in a drought-stricken area. In that message he defined the meaning of the General Welfare Clause as Madison and the others hereinbefore quoted interpreted it (italics inserted):
"Under the limited and delegated authority conferred by the Constitution upon the General Government the statement of the purposes for which money may be lawfully raised by taxation in any form declares also the limits of the objects for which it may be expended. . . . This 'general welfare of the United States,' as used in the Constitution, can only justify appropriations for national objects and for purposes which have to do with the pros

perity, the growth, the honor, or the peace and dignity of the Nation."
What would Mr. Cleveland think could he know that the Federal Government now subsidizes the farmer, pensions everybody, and plans to medicate and hospitalize the whole population? And no amendment to the Constitution authorized the change!
Supreme Court ignored history and learning on General Welfare
Notwithstanding all that members of the Constitutional Convention had written in explanation of the General Welfare Clause, which they had drafted with the care that marked every line of the Constitution, the Supreme Court of the United States, on May 24, 1937, three months after the President had attacked the Judiciary as inefficient and obstructive and asked Congress to recast it to his liking, in an opinion (301 U. S. 548) by Justice Cardozo, with dissents by Justices Sutherland, Van Devanter, McReynolds, and Butler, used this language:
"It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the Nation to relieve the unemployed and their dependents is a use for any purpose narrower than the pro-motion of the General Welfare."
That expressed the popular notion of the party in power, that a "crisis," or an "emergency," or an "extraordinary emergency," such as the President[2] was given to declaring
2. The field of the President's authority is very limited. It does not include the States, to say nothing of the external world. In No. 75 of The Federalist Madison pointed that out:
"The execution of the laws and the employment of the common strength, either for this purpose or for the common defence, seems to comprise all the functions of the Executive Magistrate."

as difficulties unfolded, and as Congress had declared in the National Industrial Recovery Act and its companion pieces, confers on Congress powers which the Constitution did not and which it therefore withheld. The Constitution withheld more powers from Congress than it granted. Besides that precaution, the Tenth Amendment was added to warn Congress not to "grab" power in any circumstances whatsoever, especially against the States.
Two fundamental errors in decision of Supreme Court
In the opinion by Justice Cardozo it is assumed that because Washington could give relief it had the power to do so. It points out that for a given time Washington gave emergency relief to the amount of $2,929,307,366, while the States expended only $689,291,802 and local subdivisions $777,675,366.
But official figures assembled by the United States News for June 18, 1938, showed that for five years the people of the States had paid to the National Government in taxes $20,411,847,208 and received in "benefits" from their own money $18,267,527,000.
They gave to Washington more than 2 billion over what was returned to them. Those figures are absolute disproof of the statement of the Court, that "the fact developed quickly that the States were unable to give the requisite relief."
But even had the States been unable to give relief, that fact would not have conferred power on Congress to take

over police jurisdiction in the States, which the Constitution had not granted.
Instead of the first American coup d'├ętat, which was executed by the Federal Emergency Relief Act of May 12, 1933, Congress should have repealed the Income Tax Law and the Estate Tax Law, by which it had been draining the States of their resources, and let the States, in close contact with the needy, go ahead and perform their police duties of relief. It chose revolution.
Rapid spread of the evil of subsidies
"Federal aid" to States for relief, for schools, and for what you will has grown worse and worse. In a report by the floor leader of the House of Representatives on January 8,1950, to the Ways and Means Committee it was shown that for the fiscal year ending June 30,1949, the people of the States paid in Federal taxes $41,864,542,295, while they got back in "aid" from their own money $5,551,054,046.
As Just before stated, for the five years ending June 30, 1938, the States paid in Federal taxes $20,411,347,208, or less than one half of what they paid in the last one year. That is what may be described as "going some." The "grants in aid" for the five-year term averaged 3 billion, 653 million, while for the last one year they were 5 billion, 551 million -- and all unconstitutional.
Arkansas, Mississippi, and New Mexico are the only States that got back anything near to half what they had paid.[3]
3. A vigilant reporter for the United Press discovered that the king of the Hoboes was visiting a friend in Pittsburgh and he interviewed His Highness for the edification of the country. The King, who has made several trips around the world, has concluded that modern travel (Cont. on 198)

The situation is fantastic, for it has often been shown in Congress that there is not a State in the Union that is not in a stronger financial position than the National Government. The States need no "aid" from Washington -- except for political purposes. That's what is going on, reminding of the "bread and circuses" which the politicians provided for the populace of sinking Rome.
Finally, on the decision in the Social Security case, it was based not only on the erroneous assumption of the inability of the States to perform their duties in giving relief, but also on what Justice Cardozo termed "a cyclical depression." To be sure, permanent legislation is not justified by a cyclical depression.
Constitutionality of Social Security Act not for Supreme Court
In the light of the reading of "general Welfare of the United States" which was given by Madison and other members of the Constitutional Convention, and by Jefferson, who was in constant communication with members while the Convention was sitting, and by several Presidents, it was not for the Executive Department, the Legislative Department, or the Judicial Department, or all of them together, to give the words a different meaning.
(3. Cont from 197) is attended by too many risks, and he has therefore concluded to become a lobbyist for "Federal aid" to young men possessed by the urge to wander. He believes that all such young men should have each year a vacation of two weeks at the expense of the Government. "Then they could travel safely and in style," he said.
Is that any more absurd than that the wealthy State of Kansas, which, up to an act for pensions to its sons who served in World War I, had no debt at all, should receive "Federal aid" in 1950 for the benefit of its needy in the amount of $18,000,000? The supervisor of welfare reported that fact in June.
[Kansas does not differ from the other states. Degeneracy is general. To them the Constitution is a dead letter.]

As in 1895 the Supreme Court, refusing to strike out a limitation in the Constitution on taxation, referred the proponents of the Income Tax Law of 1894 to the Ultimate Power, to the people as the only Constitution makers, to write an amendment if they should deem that expedient, so in the Social Security case the Supreme Court should have held the act of Congress unconstitutional and referred the "planners" and their project to the people for disposition. Then a proposal to let Congress "into a boundless field of power no longer susceptible of any definition" would have brought the answer from those who alone had it.
That course would have been what Justice Brandeis called "procedural regularity," which he said must always be followed in resolving constitutional problems.
Where authority over welfare resides
It is within the police power of the State to protect the farsighted, the frugal, and the temperate from the tax burden of caring for the indifferent, the unthrifty, the profligate, and the handicapped when they become unable to care for themselves. It may require persons not voluntarily carrying insurance in standard companies to do so, if they cannot show resources making insurance unnecessary. And it can compel employers of such persons to make payroll deductions for the payment of insurance premiums through the working years of the employees.
The United States has no constitutional interest in this subject.
This discussion may well be closed by a quotation from a sound decision of the Supreme Court on January 6, 1936, holding the Agricultural Adjustment Act unconstitutional

as not authorized by the General Welfare Clause. Later, on May 24, 1937, the Court, as seen, sustained the Social Security Act as within the General Welfare Clause -- on two erroneous conceptions: (1) that the States could not care for the people in need (which would not confer authority on Congress), and (2) that "a cyclical depression" gave power to Congress to take control forever.
An admirable view of history
In the Agricultural Adjustment case the Court, speaking through Justice Roberts, said:
"Until recently no suggestion of the existence of any such power in the Federal Government has been advanced. The expressions of the Framers of the Constitution, the decisions of this Court interpreting that Instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the Clause [General Welfare] under discussion, or elsewhere in the Constitution, the authority whereby every provision and every fair implication of that Instrument may be subverted, the independence of the individual States obliterated, and the United States converted into a central Government exercising uncontrolled police powers in every State of the Union, superseding all local control or regulation of affairs or concerns of the States.
"Hamilton himself, the leading advocate of broad interpretation of the power to tax and appropriate for the general welfare, never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the States, Story countenances no such doctrine. It never seems to have occurred to them, or to those who have agreed with them, that the general

welfare of the United States (which has aptly been termed "an indestructible Union, composed of indestructible States") might be wrecked by obliterating the constitutional members of the Union."
Justices Stone, Brandeis, and Cardozo dissented.

That decision shows the ground we have since abandoned, with Congress "in a boundless field of power, no longer susceptible of any definition."

Thanks to the great folks over at Barefoot's world website.

Thursday, May 22, 2014

Anti Federalist Papers No. 44 – What Congress Can Do; What A State Can Not

A writer in the Pennsylvania Packet, under the signature of A Freeman, has lately entered the lists as another champion for the proposed constitution. Particularly he has endeavored to show that our apprehensions of this plan of government being a consolidation of the United States into one government, and not a confederacy of sovereign independent states, is entirely groundless; and it must be acknowledged that he has advocated this cause with as much show of reason, perhaps, as the subject will admit.
The words states, several states, and united states are, he observes, frequently mentioned in the constitution. And this is an argument that their separate sovereignty and independence cannot be endangered! He has enumerated a variety of matters which, he says, congress cannot do; and which the states, in their individual capacity, must or may do, and thence infers their sovereignty and independence. In some of these, however, I apprehend he is a little mistaken.
1. "Congress cannot train the militia. " This is not strictly true. For by the 1st Article they are empowered "to provide for organizing, arming, and disciplining" them; and tho' the respective states are said to have the authority of training the militia, it must be "according to the discipline prescribed by Congress. " In this business, therefore, they will be no other than subalterns under Congress, to execute their orders; which, if they shall neglect to do, Congress will have constitutional powers to provide for, by any other means they shall think proper. They shall have power to declare what description of persons shall compose the militia; to appoint the stated times and places for exercising them; to compel personal attendance, whether when called for into actual service, or on other occasions, under what penalties they shall think proper, without regard to scruples of conscience or any other consideration. Their executive officer may march and countermarch them from one extremity of the state to the other - and all this without so much as consulting the legislature of the particular states to which they belong! Where then is that boasted security against the annihilation of the state governments, arising from "the powerful military support" they will have from their militia?
2. "Congress cannot enact laws for the inspection of the produce of the country. " Neither is this strictly true. Their power "to regulate commerce with foreign nations and among the several states, and to make all laws which shall be necessary and proper for carrying this power (among others vested in them by the constitution) into execution," most certainly extends to the enacting of inspection laws. The particular states may indeed propose such laws to them; but it is expressly declared, in the lst article, that "all such laws shall be subject to the revision and control of the Congress. "
3. "The several states can prohibit or impose duties on the importation of slaves into their own ports. " Nay, not even this can they do, "without the consent of Congress," as is expressly declared in the close of the lst article. The duty which Congress may, and it is probable will lay on the importation of slaves, will form a branch of their revenue. But this impost, as well as all others, "must be uniform throughout the United States. " Congress therefore cannot consent that one state should impose an additional duty on this article of commerce, unless all other states should do the same; and it is not very likely that some of the states will ever ask this favor.
4. "Congress cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; building lighthouses, etc. " In one case, which may very frequently happen, this proposition also fails. For if the river, canal, road, bridge, ferry, etc. , be common to two states, or a matter in which they may be both concerned, and consequently must both concur, then the interference and consent of Congress becomes absolutely necessary, since it is declared in the constitution that "no state shall, without the consent of Congress, enter into any agreement or compact with another state. "
5. "The elections of the President, Vice President, senators and representatives are exclusively in the hands of the states - even as to filling vacancies. " This, in one important part, is not true. For, by the 2d article, "in case of the removal of the President from office, or of his death, resignation, or inability to discharge the duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, etc. , both of the President and Vice President, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. "
But no such election is provided for by the constitution, till the return of the periodical election at the expiration of the four years for which the former president was chosen. And thus may the great powers of this supreme magistrate of the United States be exercised, for years together, by a man who, perhaps, never had one vote of the people for any office of government in his life.
6. "Congress cannot interfere with the constitution of any state. " This has been often said, but alas, with how little truth - since it is declared in the 6th article that "this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties, etc. , shall be the supreme law of the land, and every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. "
But, sir, in order to form a proper judgment of the probable effects of this plan of general government on the sovereignties of the several states, it is necessary also to take a view of what Congress may, constitutionally, do and of what the states may not do. This matter, however, the above writer has thought proper to pass over in silence. I would therefore beg leave in some measure, to supply this omission; and if in anything I should appear to be mistaken I hope he will take the same liberty with me that I have done with him - he will correct my mistake.
1. Congress may, even in time of peace, raise an army of 100,000 men, whom they may canton through the several states, and billet out on the inhabitants, in order to serve as necessary instruments in executing their decrees.
2. Upon the inhabitants of any state proving refractory to the will of Congress, or upon any other pretense whatsoever, Congress may can out even all the militia of as many states as they think proper, and keep them in actual service, without pay, as long as they please, subject to the utmost rigor of military discipline, corporal punishment, and death itself not excepted.
3. Congress may levy and collect a capitation or poll tax, to what amount they shall think proper; of which the poorest taxable in the state must pay as much as the richest.
4. Congress may, under the sanction of that clause in the constitution which empowers them to regulate commerce, authorize the importation of slaves, even into those states where this iniquitous trade is or may be prohibited by their laws or constitutions.
5. Congress may, under the sanction of that clause which empowers them to lay and collect duties (as distinct from imposts and excises) impose so heavy a stamp duty on newspapers and other periodical publications, as shall effectually prevent all necessary information to the people through these useful channels of intelligence.
6. Congress may, by imposing a duty on foreigners coming into the country, check the progress of its population. And after a few years they may prohibit altogether, not only the emigration of foreigners into our country, but also that of our own citizens to any other country.
7. Congress may withhold, as long as they think proper, all information respecting their proceedings from the people.
8. Congress may order the elections for members of their own body, in the several states, to be held at what times, in what places, and in what manner they shall think proper. Thus, in Pennsylvania, they may order the elections to be held in the middle of winter, at the city of Philadelphia; by which means the inhabitants of nine-tenths of the state will be effectually (tho' constitutionally) deprived of the exercise of their right of suffrage.
9. Congress may, in their courts of judicature, abolish trial by jury in civil cases altogether; and even in criminal cases, trial by a jury of the vicinage is not secured by the constitution. A crime committed at Fort Pitt may be tried by a jury of the citizens of Philadelphia.
10. Congress may, if they shall think it for the "general welfare," establish an uniformity in religion throughout the United States. Such establishments have been thought necessary, and have accordingly taken place in almost all the other countries in the world, and will no doubt be thought equally necessary in this.
11. Though I believe it is not generally so understood, yet certain it is, that Congress may emit paper money, and even make it a legal tender throughout the United States; and, what is still worse, may, after it shall have depreciated in the hands of the people, call it in by taxes, at any rate of depreciation (compared with gold and silver) which they may think proper. For though no state can emit bills of credit, or pass any law impairing the obligation of contracts, yet the Congress themselves are under no constitutional restraints on these points.
12. The number of representatives which shall compose the principal branch of Congress is so small as to occasion general complaint. Congress, however, have no power to increase the number of representatives, but may reduce it even to one fifth part of the present arrangement.
13. On the other hand, no state can call forth its militia even to suppress any insurrection or domestic violence which may take place among its own citizens. This power is, by the constitution, vested in Congress.
14. No state can compel one of its own citizens to pay a debt due to a citizen of a neighboring state. Thus a Jersey-man will be unable to recover the price of a turkey sold in the Philadelphia market, if the purchaser shall be inclined to dispute, without commencing an action in one of the federal courts.
15. No state can encourage its own manufactures either by prohibiting or even laying a duty on the importation of foreign articles.
16. No state can give relief to insolvent debtors, however distressing their situation may be, since Congress will have the exclusive right of establishing uniform laws on the subject of bankruptcies throughout the United States; and the particular states are expressly prohibited from passing any law impairing the obligation of contracts.

Learn More About American History:  Visit Jamestown, Yorktown and Colonial Williamsburg Living Museums in Virginia.

Sunday, November 17, 2013

Federalist Papers No 28, The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered (3)

For the Independent Journal. Wednesday, December 26, 1787

To the People of the State of New York:
THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.
Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.
If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?
Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.
Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.(1)
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.


1. Its full efficacy will be examined hereafter.
Enhanced by Zemanta

Thursday, October 24, 2013

Federalist Papers No. 25. The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)

From the New York Packet. Friday, December 21, 1787.

IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy.
The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority.
Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.
The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.
There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision.
The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project.
If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.
It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
Enhanced by Zemanta