Constitution Loophole?

nobody's_hero

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I was debating with a friend today and I took the opinion that the Department of Homeland Security and pretty much all of the crap that comes with it - like the PATRIOT Acts and the coming REAL I.D. act - are unconstitutional.

My friend made a point that I couldn't respond effectively to. He based his side of the argument (that the DHS is in fact a constitutionally created bureau) on Article 1, Section 8:

The 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;

Dang. He's right, in a way. This is a very broad statement, and could span to include Federal regulation of everything from a national I.D. card (if proponents claimed security was an issue, and yes I am aware of Benjamin Franklin's comment, but we have to realize it was just advice, and the Constitution has more authority) to how much saturated fat one has in his or her diet. I mean, things that are bad for the public, are bad for the public.

Any comments on how you could prove that some of these many bureaus our Federal government has are unconstitutional?

Better yet, do others here think that they are? I've been very much against the creation of these bureaus, citing Franklin's 'Liberties sacrificed for securities' quote, but that 'derned Article 1, Section 8 has got me by the balls, so to speak.:(
 
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Oh, and if it might help you with your replies:

The Department of Homeland Security was proposed by congress, and signed into being by the president. So, no rules were broken in that sense. But how would you prove that a lot of the things we (including Ron Paul) are upset about are indeed unconstitutional? Like, the IRS, or government bail-outs? Congress has a right to levy taxes (dang it!), and manage a federal healthcare program (which I think would work better at a state level, but the power was given to U.S. Congress under the 'general welfare' clause). I'm so disappointed in a way, because literally, this doesn't leave much responsibility (and, likewise, the freedom to make one's own decisions) to the states or the people. :(
 
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yes they can provide for the common defense/general welfare only if they don't infringe on anybody's liberties also i think that general WELFARE, welfare meant something different back then
 
yes they can provide for the common defense/general welfare only if they don't infringe on anybody's liberties also i think that general WELFARE, welfare meant something different back then

The definition of welfare can mean health, though. C'mon man, I really want to prove my friend wrong. :p I need ammo here. Does article 1, section 8 - by the very nature of its wording - infringe upon personal liberties by its giving of such a broad power to congress? Of course, that would be a slightly different argument than what I first posed, and I'd have to amend my position.

We were, after all, warned by the Founders that the Constitution is an imperfect document.

I know this is a tough question, that's why I need everyone's help. Give me something to work with people. :)
 
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My arguement back to him would be, a law may be constitutional as adopted. Department of Homeland Security is not unconstitutional in it's formation. It's unconstitutional in it's actions. Requiring retna scans and fingerprinting for these mechanisims violate the right to unreasonable searches and siezure. If it were just an ID card that had your info on it, it probably wouldn't be such a big deal.
 
The 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;

The 'general welfare' argument has been used for ages, which is what's enabled most of the bad legislation, but it's bull.

Read the WHOLE SENTENCE again. It's talking about WHY they can raise money! It's NOT a blanket pardon to build the nanny state, it's permission to raise money to do the things allowed by OTHER parts of the Constitution!

This interpretation needs to be STRUCK from case law.
 
The 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.
Read it closely. This clause gives the Congress the power to lay and collect taxes, duties, imposts, and excises; not the power to provide for the common defense and general welfare. The phrase "to pay the Debts and provide for the common Defence and general Welfare of the United States" indicates the purpose which the taxation is intended to serve. This clause does not create any additional powers; it only restricts the Congress from enacting taxes for any purpose other than the common defense and general welfare.

As the Supreme Court has affirmed, the enumeration of certain powers of the federal government in the Constitution presupposes that there are other powers which are not enumerated. If this clause can be interpreted in such a way as to grant broad and unbounded powers to the Congress, then clearly there is a contradiction. In the Court's opinion in U.S. v. Lopez (514 U.S. 549 (1995)), Justice Rehnquist wrote, "The Constitution mandates this [legal] uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation." (emphasis added)
 
Read it closely. This clause gives the Congress the power to lay and collect taxes, duties, imposts, and excises; not the power to provide for the common defense and general welfare. The phrase "to pay the Debts and provide for the common Defence and general Welfare of the United States" indicates the purpose which the taxation is intended to serve. This clause does not create any additional powers; it only restricts the Congress from enacting taxes for any purpose other than the common defense and general welfare.

As the Supreme Court has affirmed, the enumeration of certain powers of the federal government in the Constitution presupposes that there are other powers which are not enumerated. If this clause can be interpreted in such a way as to grant broad and unbounded powers to the Congress, then clearly there is a contradiction. In the Court's opinion in U.S. v. Lopez (514 U.S. 549 (1995)), Justice Rehnquist wrote, "The Constitution mandates this [legal] uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation." (emphasis added)


QFT, thanks for taking care of that.
 
to "pay" the Debts and provide for the common Defence and general Welfare of the United States

Debts and the common welfare of things congress can PAY for.
So yes, there are arguments that the feds bribing states with its money is legal (though you could argue the income tax is legal) this doesn't say the federal government can do anything it wants to provide for the general welfare, but it does say it can pay for whatever it wants to provide for the general welfare.. A huge loophole? I guess.
 
Article 1, Section 8, Clause 1 (what you quote) is an introduction to Article I, Section 8. A preamble, of sorts. It's describing what the preceding powers do. So "proving for general Welfare of the United States" is referring to the powers specifically given to Congress in Article I, Section 8 like establishing post offices.

Here, let me show you by taking a little at Article I, Section 8 in its entirety so I can make sure you see exactly what I mean:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

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;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

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 in any department or officer thereof.

See? The Clause you quote (which I have put in bold) is introducing you to the powers that come after. It's summarizing them. Clause 1 is not in and of itself a power, but a description of the preceding powers.

Now see that portion in italic at the end? Now THAT'S the clause that's used more than any other, hooked together with the Commerce Clause, to stretch the Constitution. It's called the necessary-and-proper or "Elastic Clause" (which in itself is a misleading name designed to make you think the clause allows for the stretching of the Constitution). But that's an entire different can of worms I won't open.

Anyway, the last point I'll make about the "General Welfare Clause" (what you quoted) is to break out the following two quotes from two of our Founding Fathers on the question of what is "general welfare":

"Our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress has not unlimited powers to provide for the general welfare, but were to those specifically enumerated; and that, as it was never meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money." - Thomas Jefferson

"Money cannot be applied to the General Welfare, otherwise than by an application of it to some particular measure conducive to the General Welfare. Whenever, therefore, money has been raised by the General Authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made." - James Madison
 
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Thank you all for the responses so far. Please keep them coming. There is some really good stuff in this thread already!

I wanted to tell my friend that when we release certain responsibilities to the federal government, the freedom to make decisions regarding those responsibilities become less personal. When a local government asks for a federal grant - for example, a city wanting money for its fire department to purchase new equipment or fund personnel (just a note: I am a firefighter; I have seen the pros and cons of federal grants) - it must be used specifically for the purpose intended (if you ask for a 'SAFER grant' to fund more personnel, but then a fire engine breaks down and you need a new one, you aren't allowed to use that money to buy another truck). In other words, you lose the right to make tough decisions with that money (even though, the money is really nothing more than your local tax dollars given back to you by the federal gov. :confused:). I could imagine nationalized health care would have its cons as well. The only real positive effect of grants is that you get money back; you just don't have nearly as much control over how to use it as when that money first left the local level.

That "general welfare" clause is a tricky one. I agree with points made here, but in a debate with a socialist such as my friend, it is very tough to argue against. I believe our founders intended the federal government to be as limited as possible without sacrificing that minimum level safety or security.

I found two links myself (not exactly the most well-known sources, probably, but I think these two websites do a good job of explaining a more limited form of federal government as it was sculpted by the founders). Check these out and see if you agree (or disagree) for the most part:

http://www.lawandliberty.org/genwel.htm

http://reagan2020.us/platform/the_general_welfare.asp

edit: Please keep commenting. It is very exciting to hear how Ron Paul's platform of limited government and strict constitutionalism is indeed a legitimate platform.
 
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Just quote Jefferson and Madison to him, remind him unlike them he didn't write or have any influence over the Constitution, and therefore what they say the Constitution means is what it means and "general welfare" does not mean what he's arguing.
 
Do not separate text from historical background. If you do, you will have
perverted and subverted the Constitution, which can only end in a distorted,
bastardized form of illegitimate government.
James Madison
Source:http://www.brainyquote.com/quotes/authors/j/james_madison.html

"With respect to the words general welfare,
I have always regarded them as qualified
by the detail of powers connected with them.
To take them in a literal and unlimited sense would be
a metamorphosis of the Constitution into a character which
there is a host of proofs was not contemplated by its creators
."
James Madison
(1751-1836), Father of the Constitution for the USA, 4th US President
http://liberty-tree.ca/qb/James.Madison.Quote.2500


I believe there were a couple of snippets in the federalist papers regarding this as well....
 
Do not separate text from historical background. If you do, you will have
perverted and subverted the Constitution, which can only end in a distorted,
bastardized form of illegitimate government.
James Madison
Source:http://www.brainyquote.com/quotes/authors/j/james_madison.html

"With respect to the words general welfare,
I have always regarded them as qualified
by the detail of powers connected with them.
To take them in a literal and unlimited sense would be
a metamorphosis of the Constitution into a character which
there is a host of proofs was not contemplated by its creators
."
James Madison
(1751-1836), Father of the Constitution for the USA, 4th US President
http://liberty-tree.ca/qb/James.Madison.Quote.2500


I believe there were a couple of snippets in the federalist papers regarding this as well....

Exactly. To understand the Constitution you have to understand what its designers meant, and there is ample proof in their other writings that they intended the federal government to be very much restrained in its power. Anything less would be to debase it by ignoring it and making up whatever ridiculous justification the English language allows you.

The framers certainly did not have nor anticipate taxpayer-funded national health insurance, for example, as a possible function of government, especially at the central level. Remember, they had just fought a revolution against a distant seat of power and were not looking to undermine the autonomy of the states, but to provide some semblance of union between them (as opposed to either outright unity or separateness).

Indeed, they were meeting in secret under the guise of simply repairing the Articles of Confederation, knowing full well that anything above a voluntary alliance between the states would smack of unification and centralized authority, which would be laughed out of every state legislature. Interpreting the Constitution even stricter than Paul does still almost led to its rejection.
 
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Furthermore, you can argue that the "General Welfare" restricts the government from assisting individuals in any way, as that is "Personal" and not "General".

General would be a measure to provide for public services and facilities that in and of themselves benefit all citizens - things like roads and police services are examples of General Welfare. All benefit programs only help SOME citizens and not others, so therefore they are not General Welfare upon their face.

"Welfare" is a tricky term nowadays, as it has been redefined to mean "dole" or "charity", not its original meaning of "doing well" or "good condition".
 
Keep those founders' quotes coming! That's good stuff, and it really puts things into the perspective of a nation just recovering from having too much government in their lives.

In fact, I found one that pretty much sets a standard for how we should 'interpret' the U.S. Constitution:

Thomas Jefferson said:
"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
 
Since you asked for more founder's quotes, give your friend this quote from James Madison:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce …The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberty, and property of the people; and the internal order, improvement and prosperity of the State. - James Madison, Federalist 45

It should be obvious that the above explanation of the scope of federal power is radically different than the modern "reading" of the Constitution, via the necessary and proper and commerce clauses (or any other clause), to create a general police power in the national government to make any law it damn well pleases regarding the health, safety and welfare of the people. Since the Federalist Papers were what the Federalists used to sell the Constitution to the American people of that time, we should hold them to their own explanation of what they were selling.

Also, what matters most of all is what the people of that time understood they were agreeing to. And on that, the history of the debates on ratification, the debates over a Bill of Rights, and the actual text of the Bill of Rights, are very instructive.

Despite the assurances of Madison, above, that the powers of the new government would be very limited, the Constitution would never have been ratified without the promise of a Bill of Rights, which the ratifying conventions of several States insisted on because they still feared misconstruction and usurpation of powers never granted.

The Federalists (Madison included) argued that no Bill of Rights was needed since the federal government lacked the power to ever infringe on any of the people’s rights and they also argued that listing certain rights and protections could dangerously lead to the inference that the government otherwise had powers not granted, and also would lead to the inference that the people’s rights were somehow limited to those listed.

Fortunately, the people did not buy those arguments (imagine where we’d be now, without a Bill of Rights!) but they did address those “concerns” in their proposed amendments, to be doubly-damn sure the Constitution would not be misinterpreted as the Federalists warned. Thus the Bill of Rights itself tells us how we must interpret the Constitution.

First, the Preamble to the Bill of Rights clearly states that its purpose was to prevent misconstruction:

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 ….
(emphasis added).

Some of those “declaratory and restrictive clauses” are written protections for certain preexisting rights of the people (such as the right to bear arms) and guarantees of ancient procedural protections, such as jury trial. But two others give commands on interpretation “to prevent misconstruction”:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. – Ninth Amendment.

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. – Tenth Amendment.
(emphasis added)

These are no mere suggestions. The Ninth Amendment uses the command language “shall not” and is as much a command as “the right of the people to keep and bear arms shall not be infringed.” It also speaks of the enumeration (the listing) in the Constitution of certain rights, not the “creation by the Constitution of certain rights.” This is no accident. The Bill of Rights does not create rights, but merely provides protection for rights that already exist.

And no, the Tenth Amendment is not merely a “truism.” It is a vital command on interpretation, just like the Ninth. The People meant it to have teeth.

There you go. The Constitution’s built-in manual for constitutional interpretation:

1. You shall not interpret the Constitution as creating rights, and you shall not interpret it as meaning that the people have only those rights listed. We the people have natural rights, and those rights go far beyond those explicitly protected by the Bill of Rights.

2. The national government does not have a general police power to legislate on anything it wants (despite the modern lies of the Supreme Court regarding the Commerce Clause to the contrary). It is a government of particular, enumerated powers, and you shall construe its powers narrowly, as the people intended. There are other powers, which we the people have not granted, and we reserve all of those other powers to our sovereign State governments, or to ourselves.

From all of this, St. George Tucker, in his 1803 commentaries on the Constitution, derived the principle that all of the Constitution’s rights protecting provisions should be read very broadly, while the power granting provisions should be read very narrowly. Tucker was correct, but you don’t need to be a legal scholar to figure it out.

The people who ratified the Constitution did not leave the vital question of its interpretation open to be manipulated by some smart-alecky modern law professor out for tenure and a book deal, or by some future federal judge playing God – they gave us their commands for how it shall and “shall not be construed.”

And it is their understanding and intent that matters, not the preferences of the Nine Nazgul on the Court. Any “interpretive methods” that are contrary to those commands are not only inaccurate, but are themselves violations of the Constitution.

As others above have noted, you cannot simply read one part of the the text outside of the context of how it relates to other parts, such as the above noted Bill of Rights text, nor can you read the text alone outside of the context of the history and the clear understanding of the Founding generation. They had just won a war of rebellion against a government that claimed the power to regulate them "in all cases whatsoever," as the Declaratory Act stated, and were not about to place another such usurping, omnipotent leviathan over themselves.

All modern revisionist attempts to make that Constitution read like some socialist/fascist wet dream of unlimited power are patent nonsense, and that goes for most of the Supreme Court cases that have wildly "expanded" federal power, with Gonzales v. Raich being but the latest such nonsense.

And don't even get me started on the absurd notions of the "Unitary Executive" which claims the president, once elected, is an omnipotent dictator with all of the powers of a Persian Emperor. Total nonsense, and once again easy to refute if people will "just open up the Constitution and READ it" as Ron Paul so famously said.

Stewart Rhodes (aka "James Otis")
 
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