Sunday, August 23, 2009

More Constitutional Reflections for "We the People"

Why does the Constitution of the United States of America only apply to Congress when they find it necessary?

“We the People”, why is the federal government usurping states rights?

The answer can be found in the various Supreme Court Cases that have decided, under the “Commerce Clause” that the federal government can impose their wishes on the various states because the actions are interpreted to be “interstate commerce” when in fact it is intrastate commerce. The problem here is not just the Supreme Court, it is also the states that do not exercise their rights and challenge these usurping practices of the federal government. Why?

The answer lies in federal taxation. The residents of each state pay taxes to the federal government to fund various federal programs which the states then in return receive funds from the federal government to pay for federally mandated programs. If the state(s) decide they want to opt out of any of these federally mandated programs, as to restrictive on states rights, then the federal government simply withhold these funds from the state(s). This represent tax dollars paid to the federal government by the taxpayers of the state(s); and is basically extortion on the federal level. Why are the state(s) not challenging these federally mandated programs when the interfere with states rights; the simple answer if fear of the federal government; and complicity over the years.

The state(s) have the right to challenge the federal government on any legislation that it enacts that in their view violates state’s rights. If the government does not back down on implementation, and suit is brought by the state(s) against the United States of America the case automatically goes directly to the Supreme Court of the United States of America and to no other court. The constitution does not allow any inferior (lower) court to hear these cases, as they are between the state and federal governments.

If you really read and understand Article I Section 8, its subsections, and the 10th Amendment you will understand what the Founding Fathers really intended for control over the federal government, while protecting the various states, from over reaching their respective duties and responsibilities for the citizens of those states.
For those thing delegated to Congress, their was a means to carry out those things delegated which meant that if the legislation was passed and constitutional they could then allocated the funds necessary and reasonable to carry out the legislation.

Example, congress was authorized to raise and maintain a Navy, therefore once the legislation was passed and signed into law; they would need the funds to pay navy personnel, which was necessary and reasonable to stand up the Navy; then the Navy needed bases, ships, hospitals, etc. those things were necessary and reasonable to maintain the Navy therefore the funds were constitutionally authorized when legislation was passed to support the need. If you look at Article I Section 8, and the 10th Amendment and then use the reasonable and necessary doctrine you can see those things authorized. Then look at the legislation in acted and enforce today which do not meet the constitutional authorization test, which means these things are unconstitutional.

Another good example, and there are many, is the 1942 case:

The court decided: “ ” & ( ) added for emphasis

In Wickard v. Filburn (1942), in the context of the Second World War, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm--that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer's growing "his own wheat" can have a substantial cumulative effect on “interstate” commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers (“foreign”). Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.

It is my opinion that this case was wrongly decided by the court for the following reasons; it established wheat growing quotas on farmers which was meant by the federal government to control wheat prices, and thereby obviously means of controlling the commodity markets for wheat production. This was, and still, is a obvious interference with the free enterprise system, and a federal government invasions of the free market system. This practice continues today, under another program know as CRP where in the federal government pays farmers to take land out of production, pays them to do so with taxpayer dollars, and thereby interferes with the free market system for food crop production and thereby controls prices at the market.

During WWII there was a need to feed the troops, this was not the intent of the farm quota legislation for wheat production. Why do I say that; simple, there was rationing of many food products during the war, wheat and corn flour was one of the commodities rationed. Why then the controls on production? It was simply to prop up the wheat prices to protect the farmer from having to operate in the free market system where wheat prices would have been low because of high production, when the need was in fact great. If it was truly to support the war effort it could have been implemented under the War Powers Act, and then abandoned it at the completion of the war.

Congress did abandon quotes after the war but replaced it with CRP, basically still controlling prices, with the farmers being complicity in that effort by signing up to payment not to plant. Thereby ensuring market prices in their favor. If you did not have CRP, and the land was in production what would the commodity prices at the market place look like today? That loaf of bread may be less expensive.

Point of interest, the Tenth Amendment accomplished nothing as you read the earlier Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."[1]
After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers.

However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause.

Another example of necessary and proper:

Article I authorizes congress to coin and print money, therefore it was necessary and proper to establish a bank to support this legislation:

"The necessary and proper clause is used to cover any governmental action not enumerated in the Constitution. Thus, it creates implied powers. These are powers that are not stated in the Constitution, but are implied by the government's need to carry out its functions. Strict Constructionists argue against the more liberal interpretation of this clause, claiming that Congress does not have the power to enact anything not enumerated in the Constitution. The issue came to a head in the case of McCullogh v. Maryland. Maryland claimed that the First Bank of the United States was unconstitutional, since its creation was not called for in the Constitution. The state proceeded to tax the Bank. John Marshall, writing for a unanimous Supreme Court, ruled that the actions of Maryland were unconstitutional, since it could not tax any part of the government. The Court also held that the Bank itself was constitutional under the "necessary and proper" clause.”

The arguments, for and against, the implied power, and reasonable and necessary varies depending how one comes down on this philosophically; and you can draw your own conclusions.

I, personally, come down as a strict constitutionalists, I believe state’s right preempt all, as long as the states are pre-disposed to making their own decisions, carrying them out, and not rely on the federal government as all knowing and all seeing.

The massive bureaucracy with one size fits all mentality usually get it wrong, and “We the People” end up paying for the inadequacies, wherein if it was left at the state levels the people are in control of their legislatures, and if they do not get it right recall is available, and more easily carried out.

Jim Buzzell
Retired Senior Chief Petty Officer
United States Navy
"Going in Harms Way"

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