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The New/Old Common Sense and The Rights of Human Beings - Part 2
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Some commentators have sought to argue that champions of states' rights have taken the Tenth Amendment to its logical conclusion by arguing for the supremacy of state governments in all matters not either specifically relegated to the federal authority or prohibited to the states. I tend to disagree with such commentators because if one wishes to take the Tenth Amendment to its true logical summit, then, the powers which are being reserved in the Tenth Amendment belong to the people and not to state governments or ruling elites.
It is states which are derivative from the people and not the other way around. The Tenth Amendment is not about states' rights versus federal rights, but, rather is about the right of individuals to be free from the tendency of governments, at all levels, to encroach upon the rights of individuals. The Tenth Amendment guarantees that governments have not been empowered by the Constitution to encroach upon the rights of people and, thereby, do whatever such governments like in relation to the people, nor do governments have the right to seek to curtail the active expression of an individual's Tenth Amendment rights as long as such an exercise of rights doe not infringe on the capacity of other individual to seek to express their similar Tenth Amendment rights.
Governments – whether federal, state or local – cannot take away the powers, privileges, rights, or immunities of the people. The authority of the federal and state governments are both curtailed and limited by the powers given to the people under the Ninth and Tenth amendments.
Some might wish to argue that a clause – sometimes referred to as the 'Supremacy Clause -- in Article VI of the Constitution is the straw which stirs the drink of democracy. This clause states:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Article I, Section 8 stipulates the areas where central government may make laws. This section begins with:
"The Congress shall have 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."
The foregoing clause – which is sometimes referred to as the 'elastic clause' due to its apparent ability to permit the federal government to expand into a whole host of unanticipated areas which concern issues of either providing for the common defense or the general welfare -- is followed by a whole list of areas where the Constitution has authorized Congress to make laws, including, but not exhausted by, the ability:
- 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 a 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;"
The foregoing list of permissions ends with the stipulation that in addition to all the powers which have been relegated to Congress with respect to various specified areas of law-making, Congress shall also be entitled:
"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."
An advocate of strong central government might take all of the foregoing powers or directives and assert – over against those who claim to champion states' rights – that the federal government is entitled to govern people in just about any way it wishes. An argument also might be made by advocates of strong central government which suggests that all manner of legislation may be "necessary and proper for carrying into execution the foregoing powers" or that all manner of legislation may be enacted in order to "provide for the common defense and general welfare."
'Public policy' is the term which is often used to refer to the different kinds of philosophical, political, economic, and legal theories which are developed by government officials – elected and otherwise – as the means through which to actualize the powers granted to the federal government under the provisions of the Constitution. Public policy encompasses the guiding principles in conjunction with pursuing that which is deemed "necessary and proper" in the way of legislation "for carrying into execution" the powers that allegedly have been delegated to the government as specified by Article I, Section 8. Public policy encompasses all that government officials consider to be a means of providing "for the common defense and general welfare of the United States" as allegedly required by Article I, Section 8. Public policy is the avenue through which the Supremacy Clause of Article VI – namely, that "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; -- is brought to life as the law of the land.
However, there may be a few bumps along the road to democratic paradise as envisioned by the sort of centralized, federal government outlined in the Constitution. First of all, in Article IV, Section 4: "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion."
There are two different senses of the idea of what constitutes a republican form of government. One sense has to do with the idea of providing a means through which the people are able to elect or appoint representatives in government to work on the behalf of the citizens.
The other sense of republicanism involves the right of people to govern themselves independently of representational government – in other words, it alludes to the possibility that people can self-govern according to negotiated agreements drawn up directly among themselves and without needing to be filtered through a system of representative government. In this form of republicanism, the people, considered as a whole, are the government and there is no layered bifurcation between, on the one hand, a body of government and, on the other hand, the people such that there is a coterie of bureaucrats and officials who serve as a protective buffer between the people and the government … with the vast majority of the protections being in the favor of the government and not the people.
Obviously, those who aspire to power over others and who have a desire to control the lives of others (or their resources) are inclined to believe that republicanism means some form of representative government in which the elected officials get to assume power and exercise that authority as their consciences, interests, and ambitions dictate – even if this means that the people do not necessarily get represented with much, if any, moral integrity. This form of republicanism represents, for those so inclined, the best opportunity to acquire power and, then, either use it for one's own purposes and agendas or use it to impose one's own ideas about the general welfare on others even while claiming to represent the people.
Sometimes, there are even a few individuals who actually do employ representational government to try to sincerely represent the interests of the people. But, if this were the norm, then, this country would not be the mess it is … indeed, it is because the modality of republicanism known as representational government has been so egregiously abused for centuries now, that, in many ways government does not function very well and has been infected with so many forms of corruption. As Tom Paine noted in a slightly different but related context, truly: "these are the times that try men's souls" … and the souls of women and children as well.
The foregoing sense of representative republican government – via elected representatives -- is the modality of governance which is most compatible with a centralized government seeking to assert its control over the people. Individuals whose ambition is the acquisition of power recognize their reflection in the others who are similarly motivated.
They recognize one another as those with whom one can do 'business' in conjunction with the divvying up of power and its concomitant rewards. The only matter which has to be settled among these partners in power is to decide how such power shall be apportioned among the ambitious, and, consequently, the clashes such individuals will experience concern matters of who acquires what power to be able to fulfill their own purposes and/or to regulate the lives of others.
The Constitution does not specify the nature of republicanism which is to be pursued. Consequently, the task of doing so is left to possibilities inherent in the Ninth and Tenth Amendments which -- with respect to all powers and rights not specifically relegated to the government or which have not been prohibited to the states – have been reserved for "the states or to the people."
Once again, this time in conjunction with the idea of republicanism, the Constitution has left a trail of ambiguity. Do states – considered as established bureaucracies and entrenched centers of power elites – have the right to determine what constitutes the republican form of government which has been promised to the states by Article IV, Section 4 of the Constitution, or, do the people -- quite independently of government and as the very source from which states, as institutional bodies, derive their authority -- have the right to determine what constitutes a republican form of government?
Since the Bill of Rights is about protecting the interests of people over against the tyranny of government of any kind, there is a prima facie case which can be built in support of the idea that it is not governments – even that of a state – which gets to determine what republicanism shall mean to the people. Congress has no say in this matter, and the President has no say in this matter, nor does the Supreme Court have any justifiable, non-arbitrary grounds (whether through judicial construction, or through some mystical theory of original intent, or via some other form of adjudicating philosophy) through which to dictate what the people must understand by the idea of republicanism, and, as previously noted, this matter of republicanism is not within the purview of states -- considered as established governments who rule over people rather than entities which are totally dependent for their existence on the people -- to decide.
Obviously, there may be many who will find the possible ramifications of the foregoing position to be rather disquieting. This is so because making the meaning of republicanism independent of government control also means that those who have vested interests secured through irresponsible representative government might no longer be able to use democracy as their personal playpen through which to satisfy their largely self-serving appetites.
So, what are some of the possibilities with respect to how people might develop the idea of a true republicanism in which the people and not governments were the determiners of that word's meaning within the context of Constitutional arrangements? A few areas which come to mind are the following: campaign finance reforms such that elections are completely funded by the public; the requirement that television and radio must, as part of their privilege of using public airwaves, provide free and qualitatively equal time to all candidates for office; the elimination of any form of paid lobbying … which does nothing to interfere with the rights of people, as individuals, to petition their government; the removal of the status of personhood from corporations; altering the form of becoming chartered as a corporation such that corporations must serve the public interests [which was, actually, the original nature of corporations in America] and not just the private interests of stockholders; abolishing the artificial obstacles which the existing two-party system has placed in the way of independent parties; non-compulsory education; establish the right of citizen grand juries to investigate whether, or not, elected representatives have upheld their oath of office; promote the ability of the people, through citizen grand juries, to independently investigate, with full subpoena power, whether, or not, crimes have been perpetrated against the people and whether or not the people have been deprived of their Ninth and Tenth Amendment rights (The idea of citizen grand juries will be developed and delineated in the latter part of this essay).
How does the foregoing fit in with the alleged right of Congress to do whatever is "necessary and proper" in the way of legislation "for carrying into execution" the powers that allegedly have been delegated to the government as specified by Article I, Section 8? How does the foregoing possibilities fit in with the federal government's alleged responsibility to "provide for the common defense and general welfare of the United States" as stipulated by Article I, Section 8, or, in accordance with Article VI, that "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land?
The federal government is not free to do whatever it likes. There are constraints on what the federal government can and can't do.
One set of constraints is the Bill of Rights -- especially, but not restricted to, the Ninth and Tenth Amendments. Another set of constraints is entailed by the republican form of government to which the people within the various states are guaranteed by the Constitution. Another set of constraints is expressed through the other Constitutional amendments which exist beyond the Bill or Rights. A further set of constraints comes in the form of the Preamble to the Constitution.
The Preamble states: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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." Consequently, whatever the President, Congress, and the judicial system do, they must act in accordance with the principles of the Preamble which are intended to serve people, not governments.
Nowhere in the Preamble is either the term government or state specifically mentioned. The idea of a 'union' has an array of possible meanings, but whatever the nature of the meaning with which one invests the term "union", clearly, the constitutional intent of the Preamble is to ensure a process which serves the people as well as their posterity with respect to securing: justice, domestic tranquility, the common defense, the general welfare, and the blessings of liberty.
Indeed, the whole idea of the Preamble is to establish the purposes and functions of the Constitution and derivative forms of government. The formation of "a more perfect union" is one which serves the interests of the people rather than governments. Unions, in the form of governments, come into being in order to meet the needs of people, and such unions are sought only to the extent that they will assist people to realize the principles inherent in that Preamble.
Furthermore, the idea of union need not be restricted to some form of elected, representative government. As noted previously, the republican form of government which is guaranteed to the people by the Constitution may extend to extra-governmental arrangements agreed upon by the people among themselves and as such give expression to a non-governmental but fully constitutional and, therefore, legal modality of union mentioned in the Preamble.
Democratic government comes into being in order to assist the people and their posterity to realize the principles set forth in the Preamble. Democratic governments have no raison d'etre independently of what is set in motion by the Preamble as a service to the people.
May government officials – elected or appointed – interpret what is meant by the various principles of the Preamble (namely, justice, liberty, domestic tranquility, the general welfare, or the common defense)? May governments proceed to require people to adhere to what the federal or state governments determine is the practical or political or legal meaning of such terms … that is, does the Constitution demand that citizens follow a given government's theory of public policy as the means through which the principles of the Preamble are to be implemented on behalf of the people?
I believe the answer to the foregoing questions is 'no' in each instance. I believe that the reasons why the answers to the foregoing questions are 'no' has not only to do with the principle of republican government which has been promised to the people by the Constitution, but, as well, has to do with not only the Ninth and Tenth Amendments, but the First Amendment which, among other things, is interpreted to mean that there must be a separation between church and state.
More specifically, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and the effective meaning of this clause was to address the fears of the people concerning the possibility that government might be hijacked by forces of religious tyranny, and, as a result, people might be become enslaved by the whims and purposes of such a government. After all, many of the people who came to America were attempting to escape the various forms of religious tyranny that were being perpetrated, aided and abetted by governments elsewhere in the world, so, why wouldn't there be fears among the people in America that government in the United States might be so corrupted?
One problem with the foregoing is that nothing has been said about what constitutes a religion. However, religion, broadly construed, need not refer to just a theistic based form of worship, but could include any system of activity which entails, among other things, a perspective concerning the meaning and purpose of life; a code of conduct concerning how life should be lived; a set of practices which are claimed to help an individual get the most out of life; and an array of warnings about what will happen to people who do not adhere to such a perspective, code of conduct, or set of practices. Moreover, all of the foregoing is often done in a context of compulsion and oppression rather than through free-will offerings.
In light of the foregoing, it seems clear that most forms of government public policy constitute a religion which is being imposed upon people, often against their will and without their consent. Government public policy seeks to establish a religion in the form of the arbitrary economic, political, and philosophical theories which underwrite any given instance of public policy concerning what government officials (both elected and appointed) believe the purpose of life should be, and how people should conduct themselves, and what practices are necessary to achieve the purposes of such theories, and what the consequences will be for those who do not abide by the teachings of such a religion.
Those who worship power, money, possessions, property, and wealth often see government as the means for pursuing the objects of their worship. They often lobby government to favor and promote their form of worship, and they often pay big sums of money to political action committees to ensure that government public policy will favor, establish, and impose their form of religion upon the people of the land.
However, even if governments were not subject to the constant evangelical fervor of money-worshipers and power-worshipers, the fact of the matter is that when governments advance public policy they are, in point of fact, seeking to establish a religion in the foregoing sense. In effect, public policy programs involve the establishing of a certain kind of economic and philosophical religion which is used as a proposed vehicle to transport the populace toward someone's arbitrary and artificial notion of political and economic salvation, and in accordance with which, citizens must live their lives on penalty of chastisement for disobeying the delusional self-aggrandizement of governmental officials who consider themselves to be the high priests and priestesses of the religion of public policy.
The foregoing scenarios are forms of religious abuse that have been transpiring almost from the inception of the United States as a legal entity. Consequently, when the Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", I take the document at its word and wonder why so many people within Congress, the executive office, and the judiciary have failed to understand what is going on through the agency of public policy as a religious activity.
I also wonder why the federal government has so consistently failed to live up to its responsibilities under Article IV, Section 4 of the Constitution which says that : "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion." In other words, why has the central government of the United States failed to protect the various states against the invasion of religious fanatics -- in the form of public policy advocates -- who seek to force upon the people forms of government which the Constitution prohibits because neither are those forms of government republican in any essential sense of this word, nor are they in accordance with the establishment clause of the First Amendment.
The Constitution does guarantee -- and cannot interfere with the free exercise thereof -- the right of people to pursue their respective individual ideas about religion, whether these are economically, philosophically and/or theologically based. However, the freedom to pursue such religious beliefs and practices is permissible only so long as such pursuits are commensurate with, and do not interfere with, the ability of other individuals to pursue -- or not -- similar principles.
Some might wish to argue that the foregoing discussion concerning public policy and religion is a bunch of nonsense because public policy is an expression of purely secular concerns. Unfortunately, secularism has been fashioned into a religious system by many who believe that once one eliminates the usual bunch of religious suspects, the constitutional field should be clear for whatever brand of secularism one wishes to advance.
Secular positions are just as much faith-based sets of initiatives as are the traditional perspectives that have been labeled as 'religious'. This is because secular philosophies cannot prove any of their contentions as being either non-problematic or anything other than, often times, being arbitrary, artificial, or lacking in a justification and validity with which all might agree. Ultimately, the attractiveness of secular based philosophies are a matter of personal likes, dislikes, and what one is willing to place faith in as a way to proceed in life.
Secular philosophies are not value free. Furthermore, they rest on assumptions which often are not provable, and, as such, constitute little more than conjectures.
Why anyone supposes that, somehow, philosophy, of whatever variety, is somehow 'better' than, more rational than, less problematic than, or more acceptable than religion in the narrow sense of the term, is a mystery. Whether one is talking about religious oppression or philosophical oppression, one is still talking about tyranny.
In years leading up to the formation of the United States, most of the people had one concern – the specter of tyranny. Sometimes this reared its head in the form of religious oppression, and sometimes this was manifested in the form of political oppression, but the result in each case was the same … the loss of control in one's own life.
Secularism gives expression to an individual's decision concerning the problems of life. However, when one seeks to impose such belief systems on people in general, then, there is problem, and, as such, the secular perspective becomes an attempt to establish a religion to which citizens must adhere as a matter of public policy.
Some may wish to argue that if one cannot use some form of religion or secularism to govern people, then, how will government be possible? Whatever the answer(s) to this dilemma may be, it cannot involve tyranny, and the problem should be reflected on a lot more insightfully than has been the case, for the most part, for the last several centuries.
Neither religion, in the normal sense of this word, nor religion in the extended sense of this word (which includes secularism) has any constitutional basis to be established by Congress as the supreme law of the land. Faith-based initiatives of either kind ought to be off-limits as a way of seeking to govern people, although people should be perfectly free to enter into whatever arrangements they like in the form of truly republican modes of non-representative self-governance which permit them to negotiate boundaries of life that respect, as much as is reciprocally possible, one another's personal predilections, interests, purposes, and orientations. Governments should assist people to explore, negotiate, and mediate these boundaries rather than insist on what those boundaries must be based on some arbitrary grounds of public policy that is imposed on the people and to which the people are compelled to adhere.
If people are uncomfortable with the fact that secularism has all the earmarks of an established religion, then, there are other constitutional issues to consider which also argue against using secularism to serve as a template on which to base the affairs of governance. For example, consider Section 1 of the Thirteenth Amendment:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Public policy often locks the citizenry into one form or another of involuntary servitude even though such people have committed no crime. As if in prison, people are required, under threat of punishment, to follow a set of rules inherent in some piece of congressional legislation, judicial review, Presidential executive orders or signing statements, or state governance which is based on arbitrary and artificial philosophical/religious musings about what constitutes justice, domestic tranquility, the common defense, general welfare, liberty, or republican government.
For instance, although Article I, Section 8 of the Constitution gives the Congress the power to borrow money on the credit of the United States, nevertheless, when the Congress does this irresponsibly and, as a result, saddles the public, both now and in future, with a rapidly increasing national debt which is so huge and unmanageable that the interest payments alone destroy the capacity of the country to properly address issues such as hunger, homelessness, poverty, health care, and environmental degradation, then, Congress has imposed a form of involuntary servitude upon the people because the people – through the ineptitude and/or corruption in government – have involuntarily been forced into serving the agendas of the national government. Moreover, when the elected officials pursue public policy agendas that borrow money on the credit of the United States – money which is not paid back – then this can affect the international credit rating of the country and once again place people in a form of involuntary servitude which affects what the people can, and cannot do, for years to come. If this is not involuntary servitude, I don't know what is.
Although under Article I, Section 8 of the Constitution, Congress does have the power to regulate commerce, both internationally and among the states, this does not entitle Congress to pursue public policy agendas which place people into involuntary servitude as a result of balance of payment issues or as a result of domestic employment losses through permitting the outsourcing of jobs to foreign countries, or as a result of giving corporations a pass on taxes, environmental pollution, and a lack of concern about the wages, health, and safety of workers.
According to Article I, Section 8 of the Constitution, Congress does "have power to lay and collect taxes." However, this does not entitle Congress to force the people into involuntary servitude by forcing people to subsidize those companies with public monies in the form of corporate welfare consisting of tax concessions, government subsidies, and lackadaisical regulatory oversight that allows such corporations to diminish the quality of life of citizens so that such companies can acquire ever greater profit margins.
Inequitable rights have been extended to corporations in the form of legal personhood that enjoys limited liability, and, therefore, little or no accountability. Inequitable rights have been given to corporations in the form of charters which allow companies to pursue the interests of stockholders rather than the interests of citizens.
These inequities exist to such an extent that corporations have filed more legal actions in an attempt to protect their alleged Fourteenth Amendment rights as 'persons' than have actual people. As such, Congress has placed real living people into various forms of involuntary servitude to corporations in order to accommodate the insatiable appetites of corporations and, in the process, have permitted the latter to gain a vice-like grip and control over large portions of the lives of citizens.
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