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September 21st, 2012
 

No, You Can’t

By Nathan Tucker

Two-hundred and twenty-five years ago Monday, the Constitutional Convention meeting in Philadelphia signed the Constitution and submitted it to the states for ratification.  It went into effect on June 21, 1788 when New Hampshire became the ninth state to approve it.  Though it is the world’s oldest national constitution, it can only claim that distinction in form rather than substance.

The government born of that Constitution was one of limited, enumerated powers, almost none of which concerned domestic policies.  Having just fought a revolutionary war, the Founding Generation understood that centralized power posed the greatest threat to freedom and individual rights.  They knew from personal experience that politicians were addicts to power, incapable of self-control.

As Thomas Jefferson warned, when “all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

The Constitution was only passed because its supporters assured the public that the new federal government lacked the power to threaten their rights.  Alexander Hamilton, for instance, argued against the need for a Bill of Rights in Federalist No. 84 because:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

The federal government was never designed for 435 Congressmen and 100 Senators to wield authority over every area of life for 320 million people.  It is no wonder, then, that Americans feel they have no voice in government.

The increase of unconstitutional power in Washington has led to laws thousands of pages long; an enormous, unelected bureaucracy to write and enforce it; and a national debt of $16 trillion and growing.  Washington has unconstitutionally mandated one-size-fits-all policies on local issues that should be left to more responsive local representatives.  And if we don’t like our local policies, at least we can always move.

To preserve our freedoms and democratic government, the Founding Generation created a federal government with only the following 14 powers:

  1. Borrow money.
  2. Regulate foreign trade and create an interstate free trade zone.
  3. Regulate naturalization.
  4. Create national bankruptcy laws.
  5. Regulate currency and punish counterfeiting.
  6. Established the post office and post roads.
  7. Create copyright and patent laws.
  8. Provide for the federal judiciary.
  9. Prosecute piracies.
  10. Declare war and provide for a military.
  11. Govern federal lands and admit new states.
  12. Regulate the time, place, and manner of casting federal ballots.
  13. Regulate interstate comity laws.
  14. Collect and spend taxes for the above.

That’s it; only 14 specific grants of power.  None of which involve health care, education, student loans, Medicare, drought relief, social security, or growing the economy.  Those areas, and all others not enumerated above, are only to be regulated, if at all, by state legislators.  That’s why they exist—they know us, and are accountable to us, far better than a Congressman who represents over 600,000 people ever will.

When candidates for federal office promise to create a land flowing with milk and honey, we should remind them of the Constitution and tell them, “No, you can’t.”  A litmus test for any federal candidate should be whether he can name the 14 enumerated powers given to Congress and justify how they authorize his legislative agenda.  If he can’t, he should neither be running for office nor playing lip service to the Constitution.

For many years now, Republican politicians have clamored for constitutionalist judges to be appointed to the federal bench.  As laudable as such a goal is, we should first elect constitutionalists to serve in Congress who acknowledge that the Constitution is a denial of power that emphatically proclaims “No, you can’t” rather than “Yes, we can.”

 

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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