From The Founder's Desk
columnist: Walt Thiessen

Topic: Constitutional Issues
The Constitution: Let's Address The ENTIRE Problem

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There is no point in talking about how to fix the fact that the government doesn't honor and protect the Constitution until we understand the complete breadth and scope of the problem. This article attempts to define that breadth and scope, then discusses what can be done about it.

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by Walt Thiessen
(Libertarian)
Monday, September 17, 2007

Nolan Chart columnist Ejner Fulsang says that the way to deal with the fact that American presidents so often exceed their Constitutional authority when they get us into most wars is to give more power to Congress to oversee the Presidency. When I suggested that it's foolish to keep rewarding Congress when they keep failing in their duties, he replied, "You gotta better idea, I'd like to hear it." This article is my attempt to address this issue for the public at large, but it's also for Ejner Fulsang.

Before we can fix Constitutional issues, we must first define what they are. Fulsang has identified one of them. Presidential war-making without a Congressional declaration of war is clearly unconstitutional, but that merely scratches the surface of a much deeper and wider-spread problem.

Let's take a moment to briefly (well, as briefly as we can) itemize the major ways that the government disregards and dishonors the Constitution at present. I'll attempt to make a short list, starting with Fulsang's point.

1. The President routinely engages in military actions that lead to thousands and tens of thousands of deaths without Congressional war declarations.
2. Article I, Section 8 grants Congress the power, "To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures...." Article I, Section 10 denies states the power to, "coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts." In other words, the framers intended money, particularly legal tender, to be denominated in nothing but gold or silver. So what did Congress pass in 1913 which later led to the complete abandonment of gold and silver as money? They passed the Federal Reserve Act. As a result, the government now controls and manipulates a fiat money supply, something the country's founders feared and detested. After all, it was fiat money issued during the American Rebellion, in the form of "Continental Dollars," which led to the famous early American phrase, "Not worth a Continental" and which (combined with an enormous war debt) undermined the Articles of Confederation to the point that they were successfully supplanted by the Constitution. The net result is that we suffer under a tax-heavy ongoing series of economic booms and busts, all driven by a government manipulated fiat money supply which systematically erodes away the value of what little savings we have via fiat money's resulting inflation.
3. The 16th Amendment to the Constitution, which empowers the government to levy and collect an income tax, was reported to have passed in two-thirds of the states. However, state records from a number of the states that "passed" it show that they very often didn't follow their own rules to properly do so. There were 48 states at the time, so 36 had to ratify the amendment for it to take effect. Secretary of State Philander Knox declared the amendment ratified on the basis of a report from his solicitor. According to a book by investigator William Bensen, who researched the history, he discovered that, eight states (Rhode Island, Utah, Connecticut, New Hampshire, Kentucky, Florida, Virginia and Pennsylvania) did not approve or ratify the amendment; Texas and Louisiana were forbidden by their own state constitutions to empower the federal government to tax; Vermont and Massachusetts rejected the amendment with a recorded vote count, and only later declared it passed without a recorded vote after the amendment was declared ratified by Knox; Tennessee, Ohio, Mississippi, California and Washington violated their state constitutions in their ratification procedures; Minnesota did not send any copy of its resolution to Knox, let alone a signed and sealed one, as required; and Oklahoma, Georgia and Illinois made unacceptable changes in wording. (Some of the above states also made such changes, in addition to their other unacceptable procedures.) Thus, the 16th Amendment should never have been declared as ratified, because only 27 states properly ratified it, and the income tax should not be in existence today.
4. There is no authority in the Constitution for the establishment of Social Security (which is essentially a government-mandated Ponzi investment scheme). Medicare (which current U.S. Comptroller General David Walker says is bankrupting the country) is also not authorized by the Constitution. There is no Constitutional authority for regulation or control by the Federal government of education, commerce, agriculture, health care, drugs, housing, the arts and a whole host of other areas that the government currently heavily regulates and controls.
5. Nine of the ten original Bill of Rights have been systematically eroded, abandoned, or just plain ignored by the Federal Government over the years. The only one that hasn't been touched yet is the 3rd amendment, which says: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." I say, give them time. They just haven't found a reason yet to do anything against the 3rd amendment. Every other of the first 10 amendments has been battered, shattered, shredded, and trampled upon. The latest victim is the 4th amendment, which received a nearly total drubbing at the hands of the Bush administration with the passage of the Patriot Act. For those who don't have their pocket Constitutions handy, the 4th amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
6. Article I, Section 8 authorizes Congress, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years...." This is clearly an abused power. America's earliest citizens were terrified of the idea of their own government maintaining a standing army. Indeed, they had just defeated a standing army maintained by Great Britain at tremendous personal cost, and they were loathe to engage another one of their own creation. Yet today the U.S. Army is a standing institution, and it has been apportioned money for far longer than two years! How did the framers intend for America to be protected without a standing army? They answered that later in the same Article I, Section 8 saying, "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress...." The Militia was a generic term used at that time to describe the groups of citizens from around the country loosely and locally organized to provide paramilitary service. If you were a white male of age, you were likely a part of the local militia. There are certain similarities between the American concept of militia and the Swiss militia, although the latter were and are conscripted. It is noteworthy that it's the existence of the Swiss militia that was the real reason Hitler never invaded "neutral" Switzerland, despite the fact that Germany invaded all of Switzerland's neighbors. His generals were strongly opposed to invading a country whose people were armed to the teeth.

Those are just the broad highlights. A truly comprehensive list of all the ways the Federal government has violated the Constitution over the years would probably fill an encyclopedia.

Jackson Turner Main in his 1961 book, The Anti-Federalists: Critics of the Constitution 1781-1788 (WW Norton & Co., New York), wrote on pp 124-5:

"The critics then turned to the failure to reserve any powers to the states. Considered in connection with the elastic clauses, this omission seemed highly significant. If it were not clearly stated that all powers not granted were reserved, then it certainly seemed that Congress might exercise such powers through interpretation. In order to collect taxes, Congress might find it 'necessary and proper' to infringe upon the right of trial by jury, or the freedom of the press, or any other right; in order to legislate for the 'general welfare,' Congress might do anything it pleased, for nothing was specifically forbidden. The time might come, George Mason warned, when Congress would oppress the people; and if anyone dared to defend them could not Congress, pretending to act for the general welfare, construe their action as sedition? Could not Congress thereupon restrict the press, and try cases arising from that restriction within its own ten-mile jurisdiction? The implications were enormous. Obviously an amendment to the Constitution was required to make it clear that this was a government on which at least a few limits were to be set--unless indeed to reserve powers was useless when the important ones had been surrendered."

Certainly sounds familiar to us who live under the reign of George W. Bush, doesn't it! This was the motivation behind the Bill of Rights. In fact, the Constitution could not have been ratified without it, since many of the states passed their resolutions in favor with the stipulation that such a Bill must be attached. The most important of the 10 amendments in the Bill of Rights reluctantly penned by James Madison was the 10th amendment, which 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."

Many constitutional scholars claim that it is the equal protection clause of the 14th amendment that limits the government the most under the Constitution, but they are wrong. The greatest limit is (or should be) the 10th amendment. If this amendment were honored and protected by the courts, we wouldn't have the huge, grasping, monolithic government that we have today.

Now that we have at least attempted to identify the full breadth and scope of the ongoing Constitutional crisis we face, what can be done about it? This is Fulsang's challenge to me.

First, we must must state what the answer cannot be. It cannot be to give the government any more power than it already has. Clearly, the government already has far too much power. It is drunk with its own power, and the intoxication increases annually. Given the fact that Congress, the President, and the courts all have sufficient power under the Constitution to hold the others accountable, but that all consistently fail to do so, demonstrates that granting more power will only make the problem worse. If Congress refuses to use its impeachment power, for example, what's the point of giving them more say over the President's implementations of war?

Put another way: if you have a sidearm and an M16 rifle, and you're under direct military attack by a hostile force, and you refuse to use either weapon to fight back, what's the point of then giving you a bazooka?

So what's left that we can do? At this point, the only thing left is for the people to show some backbone and start taking back their country from the politicians. In a letter to James Madison in 1787 referring to Shay's Rebellion, Thomas Jefferson wrote, "I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical." It might come to that, but I think we should start with revolution first, if possible.

I must take a moment to distinguish between the words "revolution" and "rebellion." The American Revolution took place between 1754 (with the start of the French and Indian wars) and ended in 1776 (with the signing of the Declaration of Independence). What followed in 1776 through 1781 was the American Rebellion, in response to Britain's refusal to honor the terms of the Declaration. A revolution is a change in thought. Just as the earth revolves around the sun, so also old ideas revolve around to form new ideas, and a change in general thinking takes place. This is the true meaning of revolution. Wars fought in association with revolution are actually rebellions against tyranny. The reason rebellion is often associated with revolution is that rebellion often follows revolution.

What we need in this country today is nothing less than a new revolution, a change in our thought practices. If we can achieve that change peacefully through democratic processes, we might avoid the bloody rebellion that often comes later when the entrenched powers that be decide to throw caution to the wind and forcibly stamp out the revolution which has already taken place. 2004 Libertarian presidential candidate Michael Badnarik likes to say that he is trying to, "Light the fires of liberty one heart at a time." Indeed that is the true nature of revolution. It is a fire that is lit one heart at a time.

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©2007 Walt Thiessen, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Monday, September 17, 2007
Last modified: Wednesday, September 19, 2007

The views expressed in this article are those of Walt Thiessen only and do not represent the views of Nolan Chart, LLC or its affiliates. Walt Thiessen is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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