In my last discourse I began a discussion on the contract that the original 13 colonies signed that we today call the United States Constitution. This contract made very clear that the federal government served at the pleasure of the states. The first nine amendments of the Bill of Rights set down very concisely the rights of individuals that could not be infringed upon by either state or federal government. The Tenth Amendment put a cap on the Bill of Rights by telling the federal government that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” These words are pretty clear and easy to understand. This invites two questions, 1) is the federal government adhering to the Tenth Amendment; and 2) if not, where did we stray?
The first question is fairly easy to address. The theory, as I understand it, is that each and every law passed and signed by the president must have a justification under one or more of the provisions of the Constitution. Let’s take a look at some of these laws.
Anyone in business with employees well knows the agency called the Occupational Safety and Health Administration (OSHA). Did you know that an OSHA inspector can walk into your office or factory and hold an unannounced safety inspection of your premises? The business owner or his representative has the right to refuse permission for this inspection but the OSHA inspector will just go to a federal judge and obtain a warrant for the inspection. This will only cause a 24 hour delay. This inspector has the power to write a ticket for an infraction, whether justified or not. To fight these tickets is time consuming and expensive. But let’s go back to the concept of these safety rules. I have been over the Constitution many times and I have not been able to find any passage that says that the federal government is responsible for the safe working conditions of businesses operating in the US. Obviously, it is smart business practice for the company to maintain safe working conditions. It is expensive to continuously train employees to replaced injured ones. But there is absolutely no justification under the Constitution for the regulations enforced by OSHA or for OSHA to exist at all.
Now I’m going to take an easy shot; the new Health Care Law that the OWH has recently signed. I have worn my eyes out pouring over the Constitution and I have yet to find anywhere the federal government has the authority to force anyone to buy anything. If you decide to walk to work in the snow without shoes, the federal government cannot make you buy shoes; you will just get cold on your own. The preamble of the Constitution says “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” One key phrase is “promote the general Welfare,” not insure it. Another key word in the preamble is “for.” The framers established a constitution for the states which had decided to be united. This may seem like a petty thing but believe me, it is not. In the next Discourse I will go into this difference in more detail.
Now let’s discuss the second question. I think that I have established that the federal government is violating the terms of the contract. But where did we stray? I say “we” because the people who allow the federal government to operate outside the confines of the agreed upon contract were elected by the citizens of the United States.
It did not take long for our new government to try on its coat of power. In 1798 four bills called the Alien and Sedition Acts were passed and signed into law by President Adams. The Naturalization Act was the first attempt at immigration regulation. It extended the time requirement for naturalization to 14 years. This act was repealed in 1802.
The Alien Friends Act gave the president the power to summarily deport any alien considered “dangerous to the peace and safety of the United States.” This law had a two year expiration date and was allowed to expire. But it gave the president a great deal of discretionary power; you might even call it a “kingly” power.
The Alien Enemies Act, the only one still in force, allowed the president to deport resident aliens if their home countries are at war with the US. We all know how this law was bent with the internment of Americans of Japanese heritage during World War II, irrespective of their citizenship status. However, I have not found any mention of Americans of German heritage being interned (but I digress).
The Sedition Act was the first effort for the federal government to dictate what was acceptable to print and what was not. It made it a crime to publish “false, scandalous, and malicious writing” against the government and/or officials. Its expiration date was the day before John Adams left office. If this law were still in force, these pages would land me in jail.
What is really sad is that these acts were signed into law by one of the Founders. The stage was set. In 1861, the slave states seceded from the Union, primarily over the issue of slavery. While I fully agree that slavery was and still is an abomination, there is still some question whether President Lincoln had the authority to force the Confederate States back into the Union. Looking back at the original intent of the Constitution we will remember that the primary concern was the rights of the states and the individual. If that was the primary concern, how could the federal government in Washington DC justify removing the rights of the states to secede? After all they had entered into the agreement of their own free wills.
In retrospect, I believe that this country is much stronger as a whole than it would have been as two separate countries. However, the federal government took a major step toward completely changing the relationship between it and the states.
In my next Discourse we will look at how the structure and interpretation of the federal/state relationship changed.
As usual, your questions and discussions are welcome.