Present day conservatives trumpet the idea that the Constitution was formed to have limited government. There is also the notion that there are only certain enumerated powers that the federal government has and that those powers not delegated to the United States are reserved to the states.
This interpretation of the words of the Constitution, conveniently disregards the complete reading of the amendments to the Constitution and the reasons behind why the founders felt it was necessary to write and ratify a Constitution and leave the Articles of Confederation in the dustbin of history.
It is a total fabrication to state that the Constitution was written to limit government.
The Articles of Confederation were a failure. Government was expanded in order to provide for a common defense. Three empires had troops hovering around the border areas of the then 13 states.
Interstate commerce was inhibited by the power each state had to coin money.
The ability to tax and raise money for the common defense and for improvements that needed to be made regarding roads and canals and the like. America was moving west and central coordination was vital for our westward expansion.
Today, if you close your eyes, and think about the arguments made in favor of a confederacy and for power to be vested in the states you would swear that you were listening to the arguments put forth by the Anti-Federalists.
Conservatives love to quote the 10th Amendment but stress the one part of the Amendment and disregard another key part. The 10th Amendment states, ” The powers not delegated to the United States by the Constitution or prohibited by it to the States, are reserved to the States respectively, or to the people. The words that you do not hear conservatives talk about is the part that says PROHIBITED BY IT, or the last part that says, reserved to the people.
Certain areas of the Constitution, are powers that are reserved exclusively to the Federal Government such as immigration.
Some states have brought out the old bromide that each state may nullify laws that the Federal government passes thereby choosing not to abide by the law of the land. We have heard these theories during the days of slavery, and we hear them now when it comes to laws that Governors of certain states do not for political reasons agree with, such as the Affordable Care Act.
Each state does retain certain powers that the Federal Government does not have. States, in fact, have been a great place for ideas to be tried out and experimented with. It is also true, that Americans have the freedom to move to states for whatever reason, and if need be move to enjoy whatever difference there might be from the state where they had lived.
But that does not detract from the fact that the Federal Government passes laws that become the law of the land that a state may not pass a law in contravention of the Federal law. A state may pass a law that improves on the Federal law but they may not diminish it’s purpose.
According to James Madision in Federalist number 44, there are 6 classes or areas of Federal authority which constitute restrictions on the authority of the states.
1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver a legal tender in payment of debts; pass any bill of attainder; ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility.
For our purposes in helping to define what powers reside in the federal government, let us look at what Madison said regarding the 6th class of power.
Madison wrote about the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or office thereof.”
“Without the substance of this power, the whole Constitution would be a dead letter.” Madison
Madison continued, ” Had the convention taken the first method of adopting the seconde article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “Expressly” with so much vigor, as to disarm the government of all real authority whatever.”
Perhaps the current so-called conservative reactionaries really want to disarm the federal government by continuing with their argument that it is all about what powers are expressly stated in our Constitution.
In the preamble to the Constitution we find the words promote the general welfare, and at the start of Section 8 of the Constitution, it states that 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, but all duties, imposts, and excises shall be uniform throughout the United States.
Article VI states that” judges in every state shall be bound thereby, any thing in the Constitution or laws of any State to the contrary nothwithstanding.
The words of the Constitution mean what they say when it talks about uniformity in certain areas and the words of Article VI are quite clear when they say that every state is bound by the laws of the land and may not pass laws to the contrary.
Madison’s letters towards the end of his life were quite clear in rejecting the John C. Calhoun notions of state’s rights and nullification.
In what may be a shock to conservatives there is a Ninth Amendment to the Constitution. Conservatives swear that only the enumerated rights of the Constitution are valid and in the process they ignore the amendment that precedes the 10th amendment.
The Ninth Amendment is about the unenumerated rights of the people.
The amendment simply states that “The enumeration in the Constitution of certain rights, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE.”
After really reading the Constitution it is hard to imagine how the Constitution did not expand the powers of a central or federal government above what the Articles of the Confederation had limited the power of a national or federal government. The general welfare clause and the Necessary and Proper clause are not specific as to what may be done. The reason is in the growth of a nation wide latitute needs to be exercised in determining what is the right thing to do for the time.
Without the ability to change and ratify new amendments the Constitution would have been dead long ago for not being able to keep up with the changing times of history. There are certain constants that will never change and the words of the actual document still have meaning and relevence.
THe authors of our Constitution were wise beyond their years and they have left us with a great legacy of truth and a system of government which has been an example especially to those governments who have sought to establish their own democracy’s.
Power resided in the people which was a revolutionary idea for its time. What the founders did was to try to insure that America would stand independent of Europe’s royalty and aristocracy. They formed a new system of government based upon the theory that a Republican form of government would be best; and that it would protect each persons natural rights and their rights as Englishmen.
We are not 50 states but a union of 50 states, indivisible and united.
TO BE CONTINUED