Our Founding Principles
Class 5
“It is hardly too strong to say that the Constitution was made to guard
the people against the dangers of good intentions…. There are men, in
all ages… who mean to govern well; but they mean to govern. They
promise to be kind masters; but they mean to be masters…They think
there need to be but little restraint upon themselves… The love of
power may sink too deep in the own hearts….”
Daniel Webster.
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Class Rules
No Politics – Stick to Principles
Use/Identify/Find Facts
Distinguish Belief vs. Truth
Interactive – Learn – Ask - Comment
Class 4 Agenda
Review www.freedom101.us site wrt Class Posts
Quotes regarding Founders feelings about the
Constitution
Federalism – What it is
Break
Federalism – How it is Implemented
Federalism – Founders’ Quotes
Federalism – Federalist Papers Debates
PowerPoint posted at:
www.freedom101.us/category/TELOS1/
Natural Law & Our Constitution
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Unalienable rights that flow from Natural Law, to be protected
by the Local, State & Federal Government:
– Right to self government,
– Right to bear arms,
– Right to own, develop and dispose of property,
– The right to assemble,
– The right to petition,
– The right of free speech & press
– The right to enjoy the fruits of one’s labors,
– The right to contrive and invent,
– The right to privacy,
– The right to provide personal security,
– The right to a fair trial,
– The right of free association,
– The right to contract.
Unalienable Duties that flow from Natural Law of the Citizens, Local
Government and State including:
– To not take the life of another except in self-defense (+Fed),
– To not steal or destroy the property of another (+Fed),
– To be honest in all transactions with others (+Fed),
– For parents and to protect, teach, feed, clothe & shelter
children,
– To support law and order and keep the peace,
– To help the helpless,
– To maintain the integrity of the family structure,
– To perpetuate humanity,
– To not promote or participate in the vices which destroy
personal and community life,
– To follow rules of moral rectitude.
Features Founders Instituted
to Implement Natural Law
• System of Justice
• Separation of powers,
Horizontal and Vertical
• Limited government
• Checks and balances
• Written Constitution
Legal Dictionary Definition of
Federalism
A principle of government that defines the
relationship between the central government at
the national level and its constituent units at the
regional, state, or local levels. Under this
principle of government, power and authority is
allocated between the national and local
governmental units, such that each unit is
delegated a sphere of power and authority only
it can exercise, while other powers must be
shared.
Legal Dictionary Definition of
Federalism, Continued
The term federalism is derived from the Latin root foedus, which means
"formal agreement or covenant." It includes the interrelationships between
the states as well as between the states and the federal government.
Governance in the United States takes place at various levels and branches of
government, which all take part in the decision-making process. From the U.S.
Supreme Court to the smallest local government, a distribution of power
allows all the entities of the system to work separately while still working
together as a nation. Supreme Court justice HUGO L. BLACK wrote that
federalism meant
a proper respect for state functions, a recognition of the fact that the
entire country is made up of a Union of separate State governments, and a
continuance of the belief that the National Government will fare best if
the States and their institutions are left free to perform their separate
functions in their separate ways. (Younger v. Harris, 401 U.S. 37, 91S. Ct.
746, 27 L. Ed. 2d 669 [1971])
The Constitution lists the legislative powers of the federal government.
The Tenth Amendment protects the residual powers of the states: "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."
How Federalism is Implemented
by the Constitution
• Enumerate the Powers of the Federal
Government (Article 1, Section 8)
• Explicitly state that all other powers are
delegated to the States and to the people (9 &
10 Amendments)
• Have Senators elected by State Legislators
(Article 1, Section3, reversed by Amendment
17)
Powers of Congress
The Constitution enumerates the powers of Congress, hence
the Federal Government, and these powers are:
• Tax and borrow money for the Defense and General
Welfare of the United States.
• Regulate Commerce with Foreign Countries,
between States and with Indian Tribes.
• Control Immigration and Bankruptcy Law.
• Coin Money and punish counterfeiting.
• Set up Post Offices and Post Roads.
• Establish Copyright, Patent, and Trademark Law.
• Declare War, maintain an Army and Navy and put
down rebellions.
Congress also has the power to make all laws “Necessary and
Proper” to carry out these powers.
What Our Founders Had to Say About
Federalism
Wording from the Constitution Preamble: “We the People of the United
States……..”
Wording from Article 1, Section 8 preamble: ……”and provide for the
common Defence and General Welfare of the United States.”
Separation of Powers by Level of Gov
Constitution
Federal Gov.
State Gov.
Local Gov.
Churches
Charities
Citizens
Other Org.
Citizens
Effect of Commerce Clause Misuse
Constitution
Federal Gov.
State Gov.
Local Gov.
Churches
Charities
Citizens
Other Org.
Citizens
The “General Welfare” Clause
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;
Change in Definition of Welfare
• Noah Webster’s 1828 Dictionary: Welfare Exemption from any unusual evil or calamity;
the enjoyment of peace and prosperity, or the
ordinary blessings of society and civil
government
• American Heritage 1969 Dictionary: Welfare Public relief – on welfare. Dependent on
public relief
Reasons Welfare Clause Does Not Give
Congress Unlimited Powers
• Not Logical
– It neuters the rest of Section 8, and the 9 & 10th
Amendments
– It creates duplication of powers
– It does not protect the states sovereignty
– It defeats the whole concept of Federalism
• The Founders said that it did not
• The Founders use of terminology does not
support the claim of unlimited powers
Concerns Expressed abt “General Welfare”
Clause by Anti-Federalist “Brutus”
“It is absurd to say, that the power of Congress is
limited to these general expression “to provide for
the common safety, and general welfare,” as it
would be to say, that it would be limited, had the
constitution said they should have power to lay
taxes, etc. at will and pleasure. Were this authority
given, it might be said, that under it the legislature
could not do injustice, or pursue and measures, but
such as were calculated to promote the public good
and happiness.” Brutus Essay No. 6 Debates on the
Constitution, vol. 1 (New York: Library of America, 1993, 618-19)
Brutus Concerns Continued
“The Powers of the general legislature extend to
every case that is of the least importance –
there is nothing valuable to human nature,
nothing dear to freemen, but what is within its
power. It has authority to make laws which will
affect the lives, the liberty, and property of
every man in the United States….”
Brutus Essay No. 1, 166-67
Brutus Concerns Continued
“The Legislature [has] authority to contract debts at
[its]discretion; [it is] the sole [judge] of what is
necessary to provide for the common defence, and
[it] only [is] to determine what is for the general
welfare; this power therefore is neither more nor
less, than a power to lay and collect taxes, imposts,
and excises, at [its] pleasure; not only the power to
lay taxes unlimited, as to the amount [it] may
require, but it is perfect and absolute to raise them
in any mode it please[s].”
Brutus Essay No. 1, 167
Madison Quote on Brutus’ Concerns
“absurd” “misconstruction” the notion that
……the power "to lay and collect taxes,
duties, imposts, and excises, to pay the
debts, and provide for the common
defense and general welfare of the United
States," amounts to an unlimited
commission to exercise every power which
may be alleged to be necessary for the
common defense or general welfare….
Federalist No. 41
Madison Continued, Brutus’s
Concerns, Federalist No. 41
• In refuting this "misconstruction", Madison pointed out
that the first paragraph of Art. I, Sec. 8 employs
"general terms" which are "immediately" followed by
the "enumeration of particular powers" which "explain
and qualify", by a "recital of particulars", the general
terms. Madison added:
• “…Nothing is more natural nor common than first to
use a general phrase, and then to explain and qualify it
by a recital of particulars. But the idea of an
enumeration of particulars which neither explain nor
qualify the general meaning, and can have no other
effect than to confound and mislead, is an absurdity…”
Madison, Continued, Brutus’ Concerns
Federalist No. 41
Madison said it was "error" to focus on the
"general expressions" and disregard "the
specifications which ascertain and limit their
import"; and to argue that the general
expression provides "an unlimited power" to
provide for "the common defense and general
welfare", is "an absurdity".
Hamilton on the “General Welfare”
“The plan of the [constitutional]
convention declares that the power of
Congress…shall extend to certain
enumerated cases. This specification of
particulars evidently excludes all
pretension to a general legislative
authority, because an affirmative grant of
special powers would be absurd, as well
as useless, if a general authority was
intended… ”
Federalist No. 83, P7
Madison on “General Welfare” Clause
“The powers delegated by the proposed
Constitution to the federal government are few
and defined. Those which are to remain in the State
governments are numerous and indefinite. The
former will be exercised principally on external
objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation
will, for the most part, be connected. The powers
reserved to the several States will extend to all the
objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the
people…”
Federalist No. 45 (9th para)
Madison on “General Welfare” Clause
“…the proposed government cannot be
deemed a national one; since its
jurisdiction extends to certain
enumerated objects only, and leaves to
the several States a residuary and
inviolable sovereignty over all other
objects….“
Federalist No.39 (3rd para from end)
Madison on General Welfare Clause
“… the general [federal] government is
not to be charged with the whole
power of making and administering
laws. Its jurisdiction is limited to
certain enumerated objects...”
Federalist No. 14, P. 8
Hamilton on “General Welfare” Clause
“…It merits particular attention in this place,
that the laws of the Confederacy [the federal
government], as to the ENUMERATED and
LEGITIMATE objects of its jurisdiction, will
become the SUPREME LAW of the land…Thus
the legislatures, courts, and magistrates, of the
respective members, will be incorporated into
the operations of the national government AS
FAR AS ITS JUST AND CONSTITUTIONAL
AUTHORITY EXTENDS…”
Federalist No. 27, (last para.)
Thomas Jefferson on Brutus’s Concerns
“For the Laying of taxes is the power, and the general
welfare the purpose, for which the power is to exercised.
Congress are not to lay taxes ad libitum, for any purpose
they please; but only to pay the debts, or provide for the
general welfare of the Union. [otherwise, it would be a
grant of a “distinct and independent power to do any act
[Congress] pleased.” [Such a grant “would reduce the
[Constitution, A1,S8] to a single phrase, that of institution a
congress with power to do whatever would be for the good
of the United States; and, as they would be the sole judges
of good and evil, it would also be a power to do whatever
evil they pleased”
Joseph Story, Commentaries on the Constitution of the United States, 4th
ed., Tomas M. Cooley, ed., vol. 1 P.923 (Boston: Little, Brown, 1873)
(citing Thomas Jefferson)
Hamilton on Tyrannical Use of Power
“If the federal government should overpass the
just bounds of its authority and make a
tyrannical use of its powers, the people, whose
creature it is, must appeal to the standard they
have formed, and take such measures to
redress the injury done to the Constitution as
the exigency may suggest and prudence
justify.” [boldface added]
Hamilton, Federalist No. 33, P. 5
Life, Liberty and ………????
• The first draft of the Declaration of
Independence listed the unalienable rights as
Life, Liberty and Property.
• They changed Property to “pursuit of
happiness” in because the south considered
slaves to be property.
• They considered “pursuit of happiness” and
property to be synonymous.
• Their idea of property was more than money,
it included family, religion, ideas, hopes, or in
short, the “fruits of one’s labor”.
Founders & Democracy II
• John Quincy Adams:
“The experience of all former ages had shown
that of all human governments, democracy was
the most unstable, fluctuating and short-lived.”
• Benjamin Franklin:
“Democracy is two wolves and a lamb voting on
what to have for lunch. Liberty is a well armed
lamb contesting the vote.”
• James Madison:
“Democracy was the right of the people to
choose their own tyrant.”
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There are many more – go to http://takeourcountrybacksnooper.blogspot.com/2008/12/democracy-v-republic-founding-fathers.html