Thursday, March 11, 2010


Most people have never read, let alone understood, the Constitution of the United States of America. They find it boring and unnecessary in their lives.

What they don't understand is that it is the "rule book" for the government and for American life in general.

It is a unique document, in that it does not, for the most part, give us a list of things government can do but what it cannot do to us.

One very interesting section is Section 8 of Article 1, which gives a job description of congress (Congress means the House of Representatives and the Senate).

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.

These days we have a congress (House and Senate) that try to use the "general welfare" clause to do anything it wants to do "for the good of the people."

"This clause, called the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country; that is a power reserved to the states..." (The Free Dictionary-Legal Dictionary).

There are two questions regarding congress' current attempt to impose health care on all U.S. citizens:

One: If health care is a "right," where did that right come from and why was it not recognized from the beginning of time and by the majority of countries until relatively recently?

Two: Where does congress get the idea that it has the power to force health care on the citizens?

Is any branch of government allowed to arbitrarily establish "rights?"

Is not the Constitution itself adequate to guarantee our freedoms? Do we need congress to busy themselves modifying, usurping and denying our liberties?

If you would like "nutshell" explanations of the Constitution, there is a great place to read them. It's: U.S. Constitution Online. Check it out, it's very interesting.


Krystal said...

Thanks for the post! People need reminding of what the Constitution says. Every child in high school should spend a year just studying the Constitution!

"general welfare" is so misused! As liberally as some in Congress use that term, they could make buffets illegal, gone could be the days of McDonald's and Taco Bell. If the healthcare push is all about people's health (because it's in the interest of the "general welfare" group that MY policy alone would cost $878/mo because of pre-existing), how about forcing everyone to purchase a treadmill and spend at least 30 minutes a day on it?

In the best interest and "general welfare" of the people, I say we should ban ALL refined foods...
and soda...
and Little Debbie Snacks...
and the peeps children get in their Easter baskets...
and caffiene...
and cigarettes...
and hard liquere...
and cars that can go over 65 MPH...

Okay, I'll stop giving them ideas...

Joe said...

Krystal: Give them time...they'll think of everything with or without our help.

sue said...

Joe - I have several copies of the Constitution, and hold it in high esteem.

But right now I prefer District 9 to Section 8.

Joe said...

sue (small "s"): That's a good one!

Leticia said...

I wonder has anyone in Washington ever read the constitution? Seems to me that should be the first thing that they should do.

For obvious reasons, we know that they have completely disregarded it and make up things as they go.

Sad, but true.

lisa said...

Our constitutional law studier in chief would be more than happy to hmmmm,hmmmm update that document.

Hi Joe

Tapline said...

Joe, Great Post....The biggest problem being that they,,,the Congress does not follow it, but in order for us to change the law they establish requires litigation and most of us can't afford to fight it. It cost them nothing...Tonight on Greta,,,I listened to that peoples representative and thought" He hasn't even listened to the people. He's still wrapped up in the bill....and Greta didn't mention what he thought the people wanted....Sorry off topic....stay well.....

Joe said...

Leticia: That's because they are not about constitutional law, they are about power.

Tap: Ditto.

Leticia said...

Joe, you got that right.

Dan said...

Joe...did you read the rest of your own dictionary definition?

From your own link

According to James Madison, the clause authorized Congress to spend money, but only to carry out the powers and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. Alexander Hamilton maintained that the clause granted Congress the power to spend without limitation for the general welfare of the nation. The winner of this debate was not declared for 150 years.

In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the U.S. Supreme Court invalidated a federal agricultural spending program because a specific congressional power over agricultural production appeared nowhere in the Constitution. According to the Court in Butler, the spending program invaded a right reserved to the states by the Tenth Amendment.

Though the Court decided that Butler was consistent with Madison's philosophy of limited federal government, it adopted Hamilton's interpretation of the General Welfare Clause, which gave Congress broad powers to spend federal money. It also established that determination of the general welfare would be left to the discretion of Congress. In its opinion, the Court warned that to challenge a federal expense on the ground that it did not promote the general welfare would "naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." The Court then obliquely confided,"[H]ow great is the extent of that range … we need hardly remark." "[D]espite the breadth of the legislative discretion," the Court continued, "our duty to hear and to render judgment remains." The Court then rendered the federal agricultural spending program at issue invalid under the Tenth Amendment.

Joe said...

Dan: Yes, Mr. Smugface, I did.

What's you point? Unless you missed mine: what the Constitution actually says.

The Supreme Court has made rulings that the Constitution does not say what it says and has overturned itself on multiple occasions...think: Brown v. Board of Education, (1954) and Plessy v. Ferguson, (1896).

There have also been SCOTUS rulings overturned by the amendment process...think: Dred Scott.

What the SCOTUS rules at any given time does not change what the Constitution says, only what they interpret it to mean. That makes whatever issue they're dealing with the law of the land until something happens to change it...think Roe v Wade (hopefully, some day).

Dan said...

So you believe that Congress, the President, and the SCOTUS can only do things specifically enumerated them in the Constition and that there is no room for interpretation? Because the Supereme Court has interpreted it counter to what you are saying.

In fact, the ability of the Supreme Court to declare laws unconstitutional is nowhere in the constitution. Should they have that ability?

Joe said...

Dan: "So you believe that Congress, the President, and the SCOTUS can only do things specifically enumerated them in the Constition and that there is no room for interpretation? Because the Supereme Court has interpreted it counter to what you are saying."


They were wrong.

Article 3; Section 2:
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States..."

Amendment 11: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

Joe said...

lisa: He has so stated on several occasions.

ablur said...

It would appear our topics are coinciding again.

Great minds think alike.

Anonymous said...

Dan's line of thinking is what has wrecked this country. To paraphrase Walter E. Williams, how would Dan like to play poker with me if the rules are "open to interpretation" by me?

"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." - James Madison, Letter to Edmund Pendleton, January 21, 1792 _Madison_ 1865, I, page 546

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." - Thomas Jefferson

Great post, Joe! We've got to keep hammering this until everybody wakes up.

Mark said...

Joe, Liberals will argue that it doesn't matter what the Constitution says or means.

They will tell you it is a living document. What does that mean? It means they believe we are free to change it to conform to what we want it to say at will and anytime we feel like it.

If they got their wish, the Constitution would change everyday.

Dan said...

Joe: Except, by your very definition, the supreme court doesn't have the power of Judicial Review because it isn't specifically enumerated in the constitution. You have effectively neutered the judiciary. Good job.

BTW: Again, another example of the hatred the right has for anyone with a PhD who disagrees with them.Justices who have spent years and years studying law and it's implications are obviously wrong and Joe...some right. Extraordinary claims require extraordinary evidence Joe. Lets here some.

Joe said...

Silverfiddle: Good paraphrase!

Mark: It is a living document, but it changes very slowly and with great effort, by design. It takes very deep breaths.

Dan: "Lets here some."

Most people with PhD degrees know the difference between "hear" and "here."

Neutering the judiciary isn't all that bad. It's good to know I have that kind of power.

Why do you refer to me as "some guy?" I'm not "some guy." I'm very special. You should learn from me.

I don't hate people with PhD degrees...some of my best friends have PhD degrees. I would never stereotype them, any more than I would stereotype blacks or any other minority groups.

Justices have been wrong in the past, some are wrong now and some will never be right.

Tom said...

Dan made a good point though. In Joe's world, the United States Supreme Court has no role in government. The reality is very different. It's as if Marbury v. Madison never happened.

I also agree that it's odd, these arm chair constitutional scholars. The entire legal history of the US is "wrong", but their lay opinion is "right". They have zero legal training, and they have passed no legal exams to demonstrate any command of the subject matter.. yet they are "right" and the professionals "wrong".

It really is an amazing position to hold... and amusing to boot.

Joe said...

Tom: Where on earth did you get the idea that I think the Supreme Court has no role in government?

I never said that. I never implied that. I did not write that. I do not now, nor have I EVER thought that.

I think the Supreme Court's role is clearly defined by the Constitution and that it should exercise that role to the fullest.

Marbury v. Madison established "judicial review," which confirmed that the Supreme Court could "interpret" the Constitution.

Whether or not that was a good ruling I will leave to another discussion...but if it were wrong, it would not be the first time the SCOTUS had to be reversed.

Of course you, being the constitutional scholar that you are, with all of your law degrees and such, know that the procedure and scope of judicial review differs from country to country and state to state, thus is itself open to interpretation.

Tom said...

I'm not a "Constitutional Scholar". I'm an engineer with an advanced degree from a prestigious university.

And that's the point. I'm merely a layman when it comes to constitutional law. I understand the way the government functions pretty well, and I understand the history of why things are the way they are. And I understand the way things are.

The way "checks and balances" work in this country is that the court has the authority of judicial review. They have reviewed the issue of "common welfare" as it relates to spending programs from Congress. They have ruled that those laws are in keeping with the Constitution.

You disagree, sure, but that doesn't mean you are right. The legal history of this nation, and the way things are today, say that you are wrong.

It is in that spirit that the Republican Congress passed the Medicare Prescription Drug Act a few years back, and President Bush signed it. It's in that spirit that Obama proposes new legislation on health care.

Just because you wish it were not so, doesn't mean it's not so.

Mark said...

When I was in Marketing, we marketing professionals had a term for engineers:

"Educated idiots"

This came from decades of experience with engineers who, possibly because they have a college education (whether or not they were from "prestigious" Universities), thought they were smarter than our own corporate R&D engineers, who were educated specifically in the products we marketed.

In a nutshell, for whatever reason, engineers seem to think that an engineering degree makes them an expert in everything, and thus, better than us mere mortals.

Here's an anecdote to help illustrate my point:

Once, when I was single, I approached an attractive woman about my age at a dance club, and asked her politely to dance. She refused in a most peculiar way. He response was, "No thanks, I'm an engineer", As if an excuse to refuse me was necessary. I have often considered her motivation for telling me that, and I've concluded that she is, like most engineers, an educated idiot.

Mark said...

BTW, My response to the lady engineer was this: "Oh, you drive a train?"

To which she icily replied, "I am a MECHANICAL engineer".

Then I said, "OH! You just work on them!"

Joe said...

Mark: That was good!

I once was hanging window treatments for extra money. A self-proclaimed engineer insisted that I put a level to the vertical I was hanging. I told him it was wrong to do so, but he insisted that as an engineer he knew what was needed. Only the window was crooked so the straight blind looked awful.

I earned extra money that day by offering to fix the blind the way it should be done (following the window, not the level) for twice what it had cost him to install it originlly.

He, somewhat blusterally, paid.

Tom said...

So, here's another question maybe you could help me with. I really want to understand your point of view on the Supreme Court.

Doug Gibbs wrote a post on this topic yesterday, criticizing Marbury vs. Madison. He says that "[i]t is irrational to think that the central government's sole arbiter of the limits of its own powers should be its own court system."

You also said; "I think the Supreme Court's role is clearly defined by the Constitution and that it should exercise that role to the fullest."

The question is simple. Who, then, decides whether or not legislation is "constitutional"?

I'm asking you, because, while I asked Doug the same exact question, he just deletes it off. I think you both have the same thinking on the topic, and so you might help me understand that thinking a little better.

Joe said...

Tom: "You disagree, sure, but that doesn't mean you are right. The legal history of this nation, and the way things are today, say that you are wrong."

That's faulty reasoning, for the opposite is also true: were I to agree, THAT would not make me right.

The Supreme Court of the United States is the "highest" court in the land. It has ultimate authority to hear "appeals" in nearly all cases decided in the Federal court system.

It can also hear "appeals" that involve a "Federal question", such as an issue involving a Federal statute or arising under the Constitution of the United States.

These appeals are heard generally only after a decision by a State’s highest court.

The Constitution gives it the power to check, if necessary, the actions of the President and Congress.

It can tell a President that his actions are not allowed by the Constitution.

It can tell Congress that a law it passed violated the U.S. Constitution and is, therefore, no longer a law.

It can also tell the government of a state that one of its laws breaks a rule in the Constitution.

The Supreme Court is the final judge in all cases involving laws of Congress, and the highest law of all — the Constitution.

Tom said...

That's very interesting, and unexpected. I mostly agree with your list, however.. how do you reconcile this;

I think the Supreme Court's role is clearly defined by the Constitution and that it should exercise that role to the fullest.,

With this;

It can tell Congress that a law it passed violated the U.S. Constitution and is, therefore, no longer a law.

Where in the Constitution does it state that that the Supreme Court has the authority to strike down laws passed by Congress?

Susannah said...

Excellent post, friend.

I love the way you state your case so solidly with people who hold "advanced degrees from prestigious institutuions." (As if the rest of us are dolts with IQs in the low 70's.) Please Tom, try to state your position w/o satisfying your need to prove your superiority. Joe is a cordial, sharp guy who isn't likely impressed in that regard anyway. Writers know about a concept called 'show, don't tell.' A dose of that here would serve nicely, I believe.

Rock on, Joe!