On Living Up To Your Words, Or, Tornado? That’s Not In The Constitution.

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

“If it’s not specifically enumerated in the Constitution,” they say, “It must be a function of the States-and the 10th Amendment says so!”

None are tougher in their language than those living in the States located below the old Mason-Dixon line-and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a “gut check” in the form of dozens of tornados that slammed into the area.

So we’re going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should-and should not-be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

“…For that was not true; his attitude was not to be explained by greed, or at any rate by greed alone, but rather by the touchiness which his great labors and their complete unsuccess had bred in him.”

–From the story The Village School Master [The Giant Mole], by Franz Kafka

Stories often begin by setting the terms of the discussion; that will be true today, and the framework for where we’ll start is Article 1, Section 8 of the US Constitution, which is the “unless it’s enumerated…” part of the Tea Party argument:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence 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 an 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, dock-Yards, 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.

OK…so, let’s talk about “who’s who” in this little drama (for the record, this won’t be a complete list of events or people; it’s just a sample for the purposes of discussion):

Arkansas had tornados Friday night; seven people died (five of those from winds not attributable to a tornado), and according to “The Post and Courier” of Charleston, SC, there had been three days of warnings from the National Weather Service before this particular weather event.

The paper also reports that Oklahoma, Louisiana, Tennessee, and Mississippi were hit.

North Carolina was hit with as many as 62 tornados over the weekend, with at least 22 dead.

In Virginia, Saturday, a 12-mile swath of Gloucester County was severely damaged, with a total of 5 dead in the Commonwealth.

North Carolina, Alabama and Mississippi have declared a State of Emergency, so has Virginia. Oklahoma has been under one State of Emergency due to wildfires since March, a second Emergency was declared over the weekend, and Federal assistance was again requested by Governor Mary Fallin to help make things better.

To keep this to a reasonable length, we’re going to drill in on three States, and three Governors; those States are Virginia, Alabama, and Oklahoma.

Alabama’s new Governor, Robert Benchley, is one of those “enumerated powers” kind of guys, in fact, he signed The 10th Amendment Pledge; the parts which concern us here read as follows:

The phrase, “General Welfare,” in Article I, Section 8 does not authorize Congress to enact any laws it claims are in the “General Welfare” of the United States.  The phrase sets forth the requirement that all laws passed by Congress in Pursuance of the enumerated powers of the Constitution shall also be in the General Welfare of the United States…

… I do, and will continue to, oppose any and all efforts by the federal government to act beyond its Constitutional authority.

Let’s move on: the Tenth Amendment Center is proud of Oklahoma’s Mary Fallin for turning down the Federal grant to set up the State’s “Obamacare” insurance exchange (officially part of the Patient Protection and Affordable Care Act [PPACA]) on 10th Amendment grounds-and she would also want you to know that:

“…I believe, as I know many of our legislators and the majority of our citizens do, that the PPACA is unconstitutional, fatally flawed and ultimately harmful to our economy and the health of our citizens…”

And then there’s Virginia:

Gov. Bob McDonnell on Friday drew cheers from the tea party crowd as he announced support for a “Repeal Amendment” to the Constitution.

“There has been a bi-partisan trampling of that federal compact of the 10th Amendment,” said McDonnell as he spoke at the Virginia Tea Party Patriots Convention in Richmond.

A “Repeal Amendment” was proposed last month by House Speaker Del. Bill Howell, R- Fredericksburg. The amendment to the U.S. Constitution would allow a federal act to be over-turned if two-thirds of state legislatures voted against it. Such an act would sway power to state legislatures, and is a popular concept in tea party circles.

When the panel moderator asked McDonnell is he would support such an amendment, he replied “yes.”

And now it’s disaster time, and these Governors are looking for disaster help…but they have a very particular view of how the Federal Government and the States ought to relate to each other…so… at this moment of urgency, just what precisely are the specifically enumerated powers that the Federal Government has at our disposal for disaster relief?

Well, according to my quick re-reading of Article 1, Section 8, that would be exactly…no power at all, except to act in case of insurrection, to try any Federal criminal offenses that might occur, and to repair any Federal docks or other needful Buildings.

(You’ll note I did not say “try and punish” any Federal criminal offenses. That’s because there’s nothing I can see in Article 1, Section 8 about Federal prisons.)

I don’t see anything in there about the National Weather Service, either, so from now on, if a State wants to know if a tornado’s coming, I guess they better pony up the cash and start themselves a State Weather Service, or buy the forecasting and warning services from a private contractor.

(This could be good for the economy, by the way: forecasting the weather requires satellites, and if every State that believes in self-reliance each launches their own satellite constellations…that’s some jobs, right there.)

FEMA? In the view of those who truly understand, it’s unconstitutional on its face, and, therefore, the Governors shouldn’t be looking to them for help.

The loans that businesses and citizens rely on to get back on their feet? Show me the “enumerated” language that permits those activities, because I can’t find it.

Grants to States to cover their extraordinary expenses? I don’t see anything authorizing such activities, and with that in mind…I don’t think so.

According to the “purist” view, the 10th Amendment requires all of this to be handled by the States, not the Federal Government; that’s why, for the life of me, I can’t figure out why these Governors weren’t thinking about disaster planning from the start of their terms.

Why weren’t these supposedly self-reliant States ready when this happened?

I mean, each of these States already has an emergency management department, and I’m sure they can manage much better locally than the Feds (or at least they claim they can), so why are they even asking for Federal help in the first place?

How is it possible that these Governors never considered that protecting the citizens of their States would be “Job 1”, to steal a phrase, and, to make a moral point, why should the rest of us be bailing them out now?

I mean, hey: you told us these were State problems, and now you have problems, and you still have States, so you know what?

Live up to your words: get all “10th Amendment-y”, and suck it up, and deal with it yourselves.

That’s what you told us you wanted, when you were Full Of Big Campaign Talk, so now do it, Governors, and stop all that crying and whimpering to us for outside help, and go make that 10th Amendment work for you.

Show us how much better local control is than when the Giant Hand Of The Federal Government Tells You What To Do.

Be the self-reliant Brawny Men that you were in your campaign ads.

And I’d pose the same challenge to anyone who voted for these Governors:

Remember how you all cheered when your candidates told you Government wasn’t the solution; that it was, instead, the problem?

If you really believed that, then what in the world are you doing asking for the Federal Government’s help now?

After all, you said you wanted Government “off your back”, and “the Government that governs best governs least”, right, so why would you want Government in your faces at a time when you’re trying your hardest just to get back on your feet?

Why aren’t you (and I’m thinking specifically of you, Tri-Corner Hat Patriot Guys) demanding that the Federal Government stay out of this and leave the States alone?

And it’s only fair: there was no tornado in California this weekend, so why should Californians pay taxes for your disaster?

And remember how adamant you were, just a couple of weeks ago, that the budget cuts associated with those Continuing Budget Resolutions weren’t deep enough?

Well, how are we supposed to make the kind of budget cuts y’all wanted on the Federal side when you’re coming around here demanding more money?

We have a deficit, remember, and we can’t be spending money we don’t have-and even if we had the money, we couldn’t spend it on helping you, because, as you all recall, there’s nothing specifically in the Constitution to allow it.

This is your problem, Constitutional purists, and, according to your own logic, it’s not ours…so if you want your roads and schools fixed, ask your citizens to volunteer to do the work or something.

Since we can no longer help you, maybe the Red Cross or some other private charity could fund the rebuilding of your communities.

Since so many conservatives believe corporate and religious philanthropy will fill in the gaps in the shrinking “social safety net”, you could try asking churches and private industry to do the work for you as a community service; I’m sure they’ll jump right in and pick up all the slack.

Hey: you were the ones full of tough talk last November, my Tea Party friends, and now it’s 10th Amendment “gut check” time, and I want to see you live up to your own words, if you have the “man pants” to do it…or I want you to see you acknowledge that this was all a giant load of hooey.

That maybe there’s a place for a United States of America, that maybe there is such a thing as “general Welfare”…or maybe even that being a 10th Amendment purist might be great down at the ol’ Heritage Foundation when you’re hustling for campaign money, but that once the big winds start blowing, ideology ain’t worth spit compared to a system of weather radars and satellites and a FEMA that will come and bail your butt out if it all goes wrong.

And if you voted for one of these clowns…either you need to get smart, right now…or maybe we need to cut the cord.

Maybe you need to see what your own vision of “10th Amendment reality” is really all about.

Maybe, just as so many of you have demanded, we should mind our own Federal business and let local government govern best.

And if it doesn’t work out, then, maybe, you’ll wake up and realize that Ronald Reagan was wrong: sometimes Government is the only game in town, and when it’s not around, providing helpful solutions…that’s when you got real problems.

Does God send natural disasters as punishment?

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On Monday Morning Philosophy, Or, Founders Tell America: “You Figure It Out”

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing “liturgical foundation” to the adherents of the point of view that the Constitution is like The Bible: that it’s somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia…was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent…was that we work it out for ourselves as we go along?

“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”

–From the song Gasoline, by Sheryl Crow

The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.

In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.

I’m here to tell you that couldn’t be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.

Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, “unclear phrasing”).

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.

Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.

I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.

Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.  

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

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