Table of Contents
1. Introduction
2. First and Second E-Mail, Part 1: On the First and Fourth Amendments, Technology, Security, and the Air Force
3. First and Second E-Mail, Part 2: Elastic Clause and Commerce Clause Interpreted Overly Broadly
4. First and Second E-Mail, Part 3: Advice for Democrats
5. Third E-Mail: McCulloch v. Maryland and Congressional Banking Powers
6. Post-Script
Content
1. Introduction
The following is an edited version comprised of excerpts from three e-mails which I sent to Professor David T. Canon, who teaches political science at the University of Wisconsin at Madison, and taught me some time between 2005 and 2009.
The e-mails were sent on January 21st, 2021.
Professor Canon told me that if my interpretation of the Constitution were taken seriously, then the U.S. Air Force, laws allowing police to tap terrorists' phones or track them on the internet, and First Amendment protections for broadcast media and internet publications, would not be allowed to exist.
Canon also said that the U.S. would be unable to compete and deal with the modern world, if the Constitution were not written in order to be interpreted broadly - and evolve with time - instead of narrowly.
Canon also made reference to the Supreme Court case McCulloch v. Maryland - which established the constitutionality of the First National Bank - as a precedent recognizing the legitimacy of applying the Necessary and Proper Clause to create new departments which may not have been specifically authorized in Article I Section 8.
I wrote the following responses, to explain my own view of how the Constitution should be interpreted with regard to the duly delegated powers of Congress. In these three e-mails to Professor Canon, I aimed to articulate a view of constitutional interpretation which combines left-wing and right-wing views.
I believe that the best way forward, to achieve needed reforms to the body of federal law (the U.S. Code), is to pursue constitutional amendments that will achieve reforms by enshrining them in the Constitution permanently.
This strategy would be used in place of: 1) temporary measures, 2) Band-Aid solutions, 3) executive orders, 4) presidential signing statements, 5) parliamentary procedures which eliminate the need for supermajorities unfairly, 6) overuse of presidential authority to reorganize the executive branch, 7) inappropriate congressional delegation of powers to the president or to independent or private agencies, and 8) other questionably constitutional ways to pass laws.
I support adopting the structure and rhetoric of the originalist interpretation of the Constitution, and using it to advance the legal goals which are held by the progressives and the Left. That is, only those which do not conflict with a libertarian interpretation of the traditional originalist viewpoint; i.e., one which strongly values individual civil liberties, freedom of expression, and due process.
The first segment of text below, consists of the text from the first two e-mails. Excerpts from the second e-mail have been attached to the first e-mail, and are seen in [brackets].
The second segment of text consists of the third e-mail. That e-mail was written after reviewing the facts of McCulloch v. Maryland.
The section headings were not included in the original e-mails.
2. First and Second E-Mail, Part 1: On the First and Fourth Amendments, Technology, Security, and the Air Force
It is easily justifiable to have an Air Force, or even a Space Force, because Article I Section 8 specifically calls for providing for the common defense.
My view is that the Necessary and Proper Clause do not give Congress its current powers. The mainstream view today is that Congress can basically give itself whichever powers it deems necessary and proper for promoting the public welfare. My view is that Congress has only those powers which the people grant it, which are necessary and proper in regards to pursuing the ends specifically enumerated in Article I Section 8.
The fact that an Air Force isn't mentioned there, doesn't mean that the common defense clause doesn't cover airborne military operations.
The fact that terrorists use the internet or the phone, doesn't mean that the Constitution prevents police from getting a warrant from a judge which specifically allows them to get phone records or internet records. [Parts of the Patriot Act may have been appropriate, due to new technologies, but only if they did not violate due process protections. And the Department of Homeland Security could have been much more easily justifiable as Constitutional if its powers had been exercised by the Department of Defense, or the Department of Justice, which existed since the 1790s.]
The fact that terrorism laws needed to be updated, justified a small percentage of what the Patriot Act accomplished. But by and large, the need to update those laws, was used to [justify] overturn[ing] Habeas Corpus [and ignoring the due process rights of people accused of terrorism].
You're correct that the Constitution doesn't allow police to tap phones. But that's a good thing, and the limitations imposed by the Constitution should have prevented wiretapping. The fact that technology is changing, doesn't mean we should validate the Patriot Act, and give up struggling against the treasonous Alien and Sedition Act, which has more or less created a free speech chilling effect upon the expression of political speech, and upon activism and protect.
3. First and Second E-Mail, Part 2: Elastic Clause and Commerce Clause Interpreted Overly Broadly
You're correct that the Commerce Clause, and the Necessary and Proper Clause – and also the General Welfare Clause – have been broadly interpreted, and that that's one of the causes. Another is Congress handing its constitutional powers over to the president without cause (as in the power to make war). Another is the reorganization authority of the president. This power to reorganize executive departments, has been interpreted to allow the president to “reorganize” entire sectors of the economy into-under his control, after Congress has assumed it has powers it doesn't have, and hands it over to the president. [The presidential power to reorganize cabinets is not supposed to extend to powers which he did not already have. But it has been used that way.] And as long as the Supreme Court doesn't stop them, this keeps going.
As I explained in the infographic, the military powers justify occupying lands essential to defense. Occupying land justifies managing it, and farming on it. Farming on land justifies regulating food and agriculture, establishing an F.D.A., and regulating environment and energy at the federal level.
So I'm actually saying that there is a constitutional rationale for federal departments not originally prescribed by the Constitution. I'm just saying that Democrats aren't currently using the best argument for growing the government. That's why the E.P.A. is toothless.
That's why I'm suggesting that people study Article I Section 8, and the views I've expressed in this letter. I think we should be expanding the Unenumerated Rights protected by the 9th Amendment, instead of the Unenumerated Powers of Congress (which arguably don't exist). I think this will lead to more successful, and more permanent, legislation, as opposed to the temporary fixes and Band-Aid half-solutions.
Teaching people how to interpret the Constitution for themselves, would be a lot more effective than teaching people that the Constitution is an outdated document. It's true that the Constitution does leave slavery in place, because of the 13th Amendment, but that amendment can itself be amended. There hasn't been a new amendment in 29 years. It's time we not only amend the Constitution, but also teach people how to amend it (a process which has historically taken as short as 6 months). If people had been less afraid of the Constitution, maybe the 13th Amendment would have been fixed by now.
Until Article I Section 8 is amended - in a way that specifically authorizes the Congress to exercise sole authority on the issues of environment, energy, health, retirement, welfare, and education; and in a way that the states cannot intervene with federal regulations – I predict that the E.P.A. and H.H.S. will remain largely powerless whenever there is a Republican president, and that Social Security will remain unstable.
4. First and Second E-Mail, Part 3: Advice for Democrats
These programs and departments are financially unstable because they are founded on ground which is not constitutionally firm. It is not the Republicans which have prevented Democrats from having the federal government do what they want, but rather, it is the Constitution which has established these limitations.
Until Democrats learn to be proficient in constitutional interpretation, I predict that the E.P.A. will remain toothless, environmental laws and health insurance programs will be easy to overturn, the Democrats will continue to waste years and trillions of dollars on programs that presidents can easily ignore, and governors and the Supreme Court will continue to veto and reject unconstitutional new uses of power by the Congress.
The time for Democrats to scream like babies in the congressional chamber, demanding that a vote be taken which they are not allowed to take (i.e., regulating gun control, therein violating the limits set by the Second Amendment) is over.
Democrats need to understand how Congress's powers are granted – and understand different views about where its authority comes from - and they need to use better justifications for empowering the Congress to take action. I assure you, there is a way to do that.
Until that happens, the Democratic Party will be giving the impression, to young legislators and activists, that if they want the federal government to have a new power, all they need to do is beg really, really hard for the Congress to start doing it. Instead of citing, in the bill, specifically, where in Article I Section 8 the authority comes from, for Congress to do it.
The Necessary and Proper Clause / Elastic Clause, the General Welfare Clause, and the Commerce Clause, are not sufficient to justify the current set of powers currently wielded by the federal government. They have all been interpreted in too broad a manner, while the definitions of the terms “regulate” and “welfare” have been widely debated.
If Congress has these powers, then what are the powers of the state governments? Solely to hire police, in order to enforce the uniform federal law which Congress hands down? Are there no issues, or sectors of the economy, which the states have sole or exclusive authority to regulate?
I was under the impression that all powers not expressly delegated to the Congress are reserved to the states or to the people (10th Amendment), and that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage the rights retained by the people (9th Amendment). The idea that the federal government can legislate upon any and all things that are mentioned - or even barely referenced in passing - in the Constitution, then we destroy what the 9th Amendment was supposed to protect.
The fact that the federal government has the authority to "establish Post Roads" does not mean that it has the authority to build and maintain a National Highway System. Establishing post roads is different from building them. Just like the exclusive federal authority to establish a uniform set of rules regarding naturalization, does not mean that the federal government has to enforce those rules. Or establish I.C.E. for those purposes. And it doesn't mean that the federal government gets to regulate immigration however it pleases. The states still retain some authority. If liberals weren't afraid of the Constitution, one of them would have thought of this by now. By now, sanctuary states and sanctuary cities could have been obviously constitutional, and independent so that the federal government doesn't fund them. But we don't have that because we insist on preserving monarchical, tyrannical levels of executive power in the presidency, and corrupt misinterpretations of the Constitution by Congress.
If we go on thinking that the federal government can do whatever it wants, then we should expect someone to be elected every 4 or 8 years who promises to either dismantle these unconstitutional programs, or else use them for evil. Perhaps it is best that they be dismantled peacefully, before they can be used for evil, or left powerless, by a future administration.
If you disagree with me, then I will run into the congressional chamber - like a progressive legislator, or a right-wing gun nut - and scream to the federal government, until they grant themselves a new power to take away your coffee mug, and give it to me. With the rationale that it vaguely (generally) promotes my well-being, so it qualifies as general welfare. That was a joke, but this is what liberals think the General Welfare Clause actually means. They don't care that the Fifth Amendment Takings Clause, and Due Process, would stop me from taking your coffee mug, for doing nothing but disagreeing with me. They only know that those limitations were imposed by slave owners, therefore government should be able to steal from anyone it pleases and give it to anyone else! And that is why we have both social welfare and corporate welfare.
This shit has got to stop. If you don't want people running into Congress screaming with guns, then we will have idiot Democratic legislators screaming for new authorities to take the people's rights away. We need a more robust and comprehensive teaching and debate concerning Article I Section 8.
I hope I have expressed at least one thought here, which is not typical of the "originalist" interpretation of the Constitution. I believe that natural rights, human rights, and civil liberties would be viewed as one and the same, if we fully understood and adopted the sentiment contained within the 9th Amendment.
5. Third E-Mail: McCulloch v. Maryland and Congressional Banking Powers
The Supreme Court was correct to establish that agencies which are necessary and proper to create, because of the powers enumerated in Article I Section 8, are constitutional. I do not dispute that.
But it could be argued that the First National Bank was not authorized by Article I Section 8 in the first place, because a central bank would not have been necessary to exercise all the banking powers listed therein.
The banking powers delegated to Congress consist of:
- the
authority to coin and issue currency (done by mints)
- the
authority to regulate bankruptcies (done by Congress)
- the
authority to lay and collect taxes, (done by Congress & the
I.R.S.)
- the authority to borrow money "on the credit of the
United States".
Additionally, the fact that the Congress has the power to do something, does not necessarily mean that it should. We have a national bank, not to pay our bills, but to manage being in debt. The fact that Congress has authority to borrow money on the credit of the United States, does not necessarily mean that the Congress should exercise that authority. Can does not equal should.
6. Post-Script
Please see the following articles, which I wrote, to learn more about how I believe Article I Section 8 of the Constitution should be interpreted:
- "How to Easily and Permanently Memorize the Enumerated Powers of Congress" (February 2020)
http://aquarianagrarian.blogspot.com/2020/02/how-to-easily-and-permanently-memorize.html
- "What is Congress Allowed to Do and What is it Not Allowed to Do (Without an Amendment)?" (January 2021)
http://aquarianagrarian.blogspot.com/2021/01/what-is-congress-allowed-to-do-and-what.html
E-Mails Written on January 21st, 2021
Introduction Written on January 22nd, 2021
Published on January 22nd, 2021
