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Thursday, July 31, 2008

A Return to Enumerated Powers

The Founders of the United States saw the danger of unrestrained government and worked very hard to limit the power and scope of government.

For instance, they divided the authority and responsibility of different functions of government into three main areas: executive, legislative and judicial. They established the doctrine of separation of powers, which meant that these three branches of government would not only have different scopes of operation, but that they would overlap as little as possible. The founders also established a system of federalism in which the central or federal government would have specific powers, with everything else retained by the individual states.

Perhaps the key thread which wove together this tapestry of limited government was the doctrine of enumerated powers which is found in Article 1 Section 8 of the United States Constitution.

The enumerated powers of the federal government are a list of things the federal government can do...and no more. In other words, by the Constitution, our federal government can only exercise powers which are explicitly granted to it by the Constitution--the governing document of our government.

For most of our history, these doctrines and constitutional limitations served us well. They kept the federal government small and in check, limiting the amount of control it could have over people and private enterprise, thus maintaining the greatest amount of freedom possible.

President Franklin D. Roosevelt, however, had a vision of central authority for the United States government--and those enumerated powers of the Constitution stood in his way. But during his long tenure as president, during the Great Depression and World War II, he had the opportunity to appoint eight Supreme Court judges--judges who saw things FDR’s way, whether that was the Constitution's way or not.

The result was a massive expansion of federal power. Programs that had no constitutional authority (in fact, many were contrary to the limits of the Constitution) were passed through congress, signed into law by FDR, and when the constitutional challenges came, FDR's court thwarted them.

Since then, to greater and lesser degrees, many presidents promoted and pretty much every congress has passed the laws it saw fit, sometimes without any regard whatsoever to their constitutionality, and complicit judges have continued to hold a boot on the neck of the Constitution.

From the amount of legislation that comes out of congress today, it seems clear that most congressmen don't give the slightest thought as to whether a given bill fits within the enumerated powers.

This reckless doctrine of legislation by whim has produced a bloated government with a $3 trillion budget, an incomprehensible tax code, an impossible regulatory maze, and an egregious loss of economic and personal freedom.

If we are to remain a free people and retain a strong economy for much longer, this contemptuous attitude from Congress must stop.

Fortunately, there are some in Congress who understand their duty under the Constitution, and are working to uphold it.

According to the Heritage Foundation, Representative John Shadegg (R–AZ) has introduced and re-introduced the Enumerated Powers Act (HR 1359) since 1995. He was recently joined in sponsorship of this legislation by Senator Tom Coburn (R–OK) with S 3159.

The Enumerated Powers Act would require all legislation introduced in Congress to "contain a concise and definite statement of the constitutional authority" empowering Congress to enact it.

Knowing some congressmen’s determination to bribe the voters with their own money, it is likely that many would find a way to get around the Enumerated Powers Act. But it would provide certain things which could mitigate the unconstitutional bills introduced and supported by many in congress.

First, it would provide the opportunity for an opponent to raise a point of order if constitutional muster was in question.

It would also resurrect the United States Constitution as a consideration in the legislative process, something that never enters the mind of too many congressmen today. Who knows—maybe actually thinking about the Constitution when considering hundreds of bills each year might actually cause the importance of our governing document to eventually sink in a little.

If they still chose to ignore or override constitutional considerations, this would provide “fodder”—as the Heritage piece calls it—for others to talk about constitutional authority, and perhaps to hold over the heads of elected officials who run roughshod over the Constitution.

Some will certainly try to use one of the most common current abuses of constitutional limitations—the Commerce Clause—but the Enumerated Powers Act could shed light on the process to expose this abuse.

The Founders were pretty clear, not only in the Constitution they created but in their personal writings and statements, that ours was to be a limited government.

One constitutional clause the Founders feared might be abused was the “General Welfare Clause.” But they made it plain that this clause was not to be used as a blank check to introduce what the Constitution otherwise contained no authority for.

For instance:

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

With respect to the two 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

Logically, the same caution and intent should apply to the Commerce Clause as applies to the General Welfare Clause.

As things stand right now, there is almost no constitutional light shed on the legislative process in Congress. The Enumerated Powers Act would shine a fresh light on the dirty deeds done in the dark, and would send some of the cockroaches scurrying for political cover. It would reduce the constitutional disdain of our congress, even if it didn’t stop it completely.

The Constitution is the governing document of our government, and it is the highest law of our land; all other laws are measured by it. It helps guard and defends the freedom of our society and us as individuals.

If we care about our freedom and the freedom of our posterity, we will consider it our duty to support Rep. Shadegg and Senator Coburn, and the Enumerated Powers Act.

If we fail to do so, we will have ourselves first to blame as we watch our freedom and prosperity exponentially wither away.


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