General Welfare Amendment Arguments

The original Constitution provides all the logic for constraining the federal government to expenditures that are truly constitutional.  However, there are two areas that are subject to gross interpretation today thanks to the erosion of meaning promoted by a Supreme Court whose prestige is enhanced by the broader powers given to it by these misinterpretations.  The two areas are both in Article I,
Section 8:

·         The general welfare phrase – The potential for an expansive interpretation (what the courts have given us today) was identified in 1788 in The Federalist, Madison: No. 41, where Madison calls the expansive interpretation of general welfare an “absurdity”.  This “hole” in the Constitution could be easily corrected (see comments below).

·         The interstate commerce clause – This is far more complex since this is part of a mechanism used to establish the first common market.  Originally regulate meant regulate, but today it means coerce, thanks to the failure of the Supreme Court to uphold the Constitution.

The necessary and proper clause concludes the specifically enumerated powers of Congress and is actually redundant in that it adds no powers other than those that exist elsewhere in the Constitution.  By definition, the fundamental responsibility of legislative bodies is to make laws.  The scope of those laws, however, differs by form of government:

·         Monarchy – To the extent the monarch enjoys the veto power, the legislative body in a monarchy is empowered to make laws that satisfy the monarch.  This is also true of a dictatorship.  In an oligarchy, the oligarchs must be satisfied, but the essential characteristic in each case is that laws are not made subject to the will of the people

·         Democracy – A simple majority determines which laws will be passed.  In a representative democracy the people do not form the majority – their representatives do.

·         Republic – The distinction between a republic and a democracy is that the legislative body is further constrained to the rule of law.  It may not pass laws that are outside of the rule of law.  In a nation such as the United Kingdom, the rule of law is an unwritten constitution.  The people of other nations do not trust public officials and have created written constitutions.  The foremost written constitution is the Constitution of the United States.  In a constitutional republic, theoretically, no law may be written that contradicts the Constitution.

Perhaps no other individual has captured the distinction between a democracy and a republic better than Alexis de Tocqueville who coined the term, the tyranny of the majority.  In a democracy there is nothing to prevent 51% of the people, or their representatives, from passing a law that would expropriate every bit of wealth from the minority.  It would be legal.

Although it should not be necessary, the amount of effort required to educate citizens of the United States to understand that federal judges are undermining the Constitution makes this an impractical alternative.  It would be far easier to propose and ratify an amendment that would clarify the limited intent of the general welfare phrase by adding the following five words to this phrase though an amendment, “(general welfare) as enumerated in this Constitution”.  This makes the interpretation of the general welfare phrase explicitly consistent with the meaning Madison and other Constitution framers intended.  The following are the benefits that would be achieved from this minor wording change:

·         Any time a federal judge invoked the general welfare phrase he/she would be inviting career termination through impeachment.

·         Knowing that unconstitutional legislation wouldn’t face the test of constitutionality in federal courts and that the legislator would have to face the wrath of the voters at home, legislators would be reluctant to promote unconstitutional legislation.

·         Realizing that legislators were no longer in a position to pass unconstitutional legislation, most lobbyists would turn to honest occupations.

·         The remaining lobbyists would have no need to make political contributions since only constitutional legislation could be passed, and that would have the support of the majority of the people anyway.

·         Without an army of lobbyists parading through the representative’s office, there would be dramatically less proposed legislation to evaluate.  Congressional staffs would be dramatically reduced.

·         With the amount of proposed legislation reduced the people could finally review every new piece of legislation to assure it passes “the smell test”.

·         With the “price” of a seat in Congress lowered, the number of applicants would be increased.

Competing Amendments

Citizens should be aware that it is intentionally difficult to amend the Constitution and that they should be not be led down the “primrose path” of proposed panacea amendments that will ultimately frustrate them further as well as continue the erosion of the meaning of our Constitution.  Two such amendments are heavily promoted today by people who are either ignorant of the Constitution’s meaning, or who intentionally are promoting these amendments to further frustrate the will of the people.

Congressional Term Limits

The argument for congressional term limits is based upon the idea that our representatives get too comfortable in Washington and forget their roots with the people.  While that is true, congressional term limits would do almost nothing to curb the real problems in Washington.  What good is to be expected from sending a “fresh pack of wolves” to our nation’s capital more frequently?  If anything, that should create even more strident corruption by encouraging a culture of “getting while the getting is good”.

Balanced Budget Amendment

A balanced budget amendment would institutionalize excessive cost of government by giving our representatives the rationalization for raising taxes from an already excessively high level.  Unbalanced budgets are not the problem.  We have lived with them for almost a century.  Federal expenditures that are unconstitutional are the problem.  We could balance the budget anytime we want to by simply limiting federal expenditures to outlays that are authorized by the Constitution.

The current Balanced Budget Amendment Legislation has other limitations:

·         Dependent upon federal government calculation of gross domestic product – Even if gross domestic product (GDP) can be calculated, do we really trust the federal bureaucracy to give us accurate figures when it has a stake in a higher GDP?

·         The proposed legislation is complex – This is a lawyer’s dream and a citizen’s nightmare.  A good amendment should be clear, concise and completely capable of doing the job it sets out to do.  The current legislation proposing a balanced budget amendment fails on all counts.

FOR MORE INFORMATION:

Related courses are available by Phil Duffy on the following:

·         Constitution of the United States – 5 two-hour sessions

·         Amending the Constitution – A single 1.5 hour session

·         Basic Economics – 5 two-hour sessions (with Brandon Boyd)

·         Reckless Endangerment – A single 1.5 hour session covering the causes of the Financial Crisis of 2008 as reported in a book by that title

To register interest in a course, send Phil Duffy an e-mail at phil@bearingasset.com.  When sufficient interest is recorded, a time and place will be negotiated with the interested registrants.  There is no required fee for these courses.