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The New/Old Common Sense and The Rights of Human Beings - Part 3
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Even though Article I, Section 8, of the Constitution does empower Congress: "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" and even though, under Article 2, Section 2 of the Constitution, "the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States", none of the foregoing powers entitles either of these branches of the government to invade other countries without a rigorously provable "clear and present danger" to the United States, nor do such powers entitle one to slaughter civilian populations in the countries which are being invaded, nor do such powers permit one to wage war on children or to torture the citizens of other countries, nor do such powers entitle one to issue warrantless wiretaps which invade the privacy of American citizens. In addition, and most relevant to the present discussion, just because the Constitution cites certain powers belonging to Congress and the Executive Branch, these powers may not be employed in such a manner so as to force the citizens of the United States into a form of involuntary servitude which requires that the American people be inextricably tied to policies of terror, mass murder, or economic rape and enslavement of either the people or resources of another country that may be promulgated by either Congress or a given Commander in Chief. In fact, those who abuse such powers should be relieved of their duties.
The powers of the Congress and the Executive Branch are circumscribed and constrained by principles inherent in the Preamble to the Constitution, the guarantee of a republican government for the people of the various states, the Bill of Rights, and the remaining amendments – not to mention common decency, morality, and civilized behavior.
Having power does not entitle one to be an international criminal. Furthermore, if one cannot act in accordance with the principles of democracy on the home front, then, seeking to export democracy to other countries – even if and when this might be done in internationally acceptable ways – is nothing less than a crude hypocrisy which forces upon all citizens an involuntary servitude to a form of existence characterized by shame, embarrassment, and a general loss in quality of life.
When citizens are not free to pursue whatever forms of republican government they choose, then, such citizens exist in a state of involuntary servitude. When citizens are not free to tell corporations what the latter can and cannot do but, instead, are forced into being at the mercy of the whims and interests of corporations, then, such citizens exist in a state of involuntary servitude. When the citizens are virtually powerless to prevent Congress, the executive branch, the judiciary or state governments from behaving irresponsibly, corruptly, or foolishly, then, the citizens exist in a state of involuntary servitude with respect to government public policy agendas.
Voting someone into office does not mean that anything and everything which an elected official may do while in office has been voluntarily agreed to, beforehand, by the electorate – especially the ones who did not vote for that person. Electing someone to office is an exercise in trust on the part of a citizenry which hopes that such an individual will exercise the power of office judiciously and wisely in order to help the people to solve problems, rather than create them, and to not betray the trust which has been extended to that elected official.
When an elected official abuses the power of office, one of two things is likely to ensue. On the one hand, the official may vote for legislation or support public policy agendas that place the electorate into one form, or another, of involuntary servitude – such as a form of national indebtedness that allows foreign countries to own a considerable amount of the future wealth of the American people; disadvantageous credit ratings; problematic balance of trade deficits; dysfunctional tax policies; inequitable treatment of actual people relative to artificial persons, sometimes referred to as limited liability corporations, and so on. Or, on the other hand, the official who abuses the power of office will fail to vote for legislation or pursue programs that actually would secure and advance the principles outlined in the Preamble to the Constitution or secure and advance the cause of true republican government – both of which the elected official has taken an oath of office to secure, protect, and enhance.
In either of the foregoing cases, liberties, domestic tranquility, justice, the general welfare, and the common defense (and defense is not at all the same thing as offensive wars) are diminished. In either case people are drawn into various forms of involuntary servitude as a result of the slings and arrows of outrageous government that enslaves people against their will and, therefore, constitutes involuntary servitude.
When governments, through their peremptory notion of democracy, force citizens into various forms of involuntary servitude, then they give expression to the fact that such governments are the ones who constitute a clear and present danger to the people. When governments insist on presuming that they have unlimited and unassailable powers through which to twist citizens in what ever way the delusional pathologies of such governments are inclined, then, one begins to have a very clear understanding of why Patrick Henry referred to the Philadelphia Convention as having the "stink of monarchy" about it, and one also begins to understand why it is that one must be retain a healthy sense of skepticism with respect to virtually all forms of government.
To be sure, "in order to form a more perfect union" it is necessary for people to willingly give up certain expressions of liberty. However, such a sacrifice is willingly done only to the extent that governments do not seek to exploit or leverage the situation by forcing people into involuntary forms of servitude which are neither necessary nor can be justified as being an inherent part of the 'deal' through which certain forms of liberty are willingly foregone in exchange for a set of compensations in the way of liberties, rights, privileges, immunities, and powers that would not be possible if people were not willing to impose certain constraints upon themselves.
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During its infancy, the Supreme Court tended to rule in ways which supported the belief that so-called 'police powers' (the right to make laws governing the internal order of a given geographical area usually in the form of a state) were reserved for the states and did not belong to the federal government. In fact, so much was this belief part of the zeitgeist that following a Supreme Court judgment to uphold the constitutionality of the Second Bank in McCulloch v. Maryland (1819), Chief Justice John Marshall vigorously sought to rebuff critics of his ruling by arguing that the decision did not in any way expand the powers of Congress, and, instead, claimed that his ruling was only about the propriety of the means through which a constitutionally delegated power might be implemented.
Chief Justice Marshall can argue as vehemently as he likes about the nature of what he claims to have done in McCulloch v. Maryland,, but the one thing he did not appear to do is to fully consider or protect the rights of the people under the Ninth and Tenth Amendments. In short, he did not appear to ask himself or the other Justices the following question: Independently of the question of federal versus states rights, what are the rights and powers of the people in the matter of the establishing of the Second Bank of the United States?
The people had Constitutional standing in the case under the Ninth and Tenth Amendments. Neither Congress, state legislatures, nor the judiciary can presume that they serve the interests of the people if their activities entail conditions which adversely affect what happens to the people as a result of the actions of the government or of the judiciary. Only the people have the right to say what is in their best interests, and neither the different levels of federalist government nor the judiciary may usurp such rights.
If the formation of a federally chartered bank leads to the devaluation of money, or if banking practices lead to various forms of financial speculation which injure the economy, or if lending practices are pursued that favor some patrons over others, or if the bank subsequently fails and, as a result, depositors lose their life's savings, then all of this has ramifications for the generality of people and not just for state governments. Chief Justice Marshall may have thought that he was only focusing on determining what were permissible means for enabling Congress to exercise powers which he believed to have been delegated to it through the provisions of the Constitution, but he was doing so without rigorously asking the question of whether the principles of the Preamble, or the guarantee of republican government, or the Bill of Rights actually entitled Congress to sanction the formation of banks if that action did not serve the interests of the people quite independently of what the act did in relation to various state governments.
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Up until the time of Lincoln's presidency, Jefferson's belief that the Tenth Amendment was at the heart of a constitutional union of state and federal governments seemed to be borne out. Indeed, state governments were so frisky in asserting the independence to which they believed they were entitled that many states openly defied the federal government on a variety of occasions.
For example, many of the New England states threatened to secede from the Union following the Louisiana Purchase of 1803, and did so again during the War of 1812. In addition, many of the same New England States actively sought to undermine and oppose federal actions during the Mexican War which occurred between 1846 and 1848.
A number of southern states resisted the enforcement of a variety of federal laws in 1799 and again during the 1830s. And, of course, eleven southern states did not just threaten to defy the federal government in 1860-1861 but actually seceded from the Union.
Other states also engaged in on-going confrontations with the central government concerning the implementation of federal laws. Among these states were Wisconsin, Illinois, and Ohio.
One might note in passing that when states thwart the federal government, they are said to be exercising their Tenth Amendment rights, but when individuals assert their Tenth Amendment rights this is labeled as illegal acts of civil disobedience. This difference in stating the matter is merely a reflection of a belief propagated by both federal and state governments that notwithstanding the actual wording of the Tenth Amendment, nonetheless, as far as governments are concerned, the people have no independent standing when it comes to seeking to assess the meaning and significance of the Tenth Amendment.
When Lincoln sought to prevent Southern States from seceding from the Union, he not only denied both states and people their Tenth Amendment rights, but, as well, Lincoln also denied to the states and the people of those states their constitutionally guaranteed right to a republican form of government. In short, Lincoln exceeded his authority under the Constitution, and, as such, his actions were unconstitutional and it speaks to the shame of the Supreme Court of the time that they did not confirm these facts.
The foregoing contention does not mean that I believe governments or anyone has a right to enslave others. In fact, most, if not all, of the Southern state governments were also seeking – just as the federal government was doing -- to deprive the people of their Tenth Amendment rights as well as to deny the people their constitutionally guaranteed right to realize the constitutional promise of republican government. Apparently both federal government and southern government officials read the text of the Tenth Amendment only as far as the term "states" and, then, stopped reading.
Indeed, both the state governments and the federal government have been conspiring before, during, and after the Civil War to deprive the people of their Ninth and Tenth Amendment rights. The governments of both the North and the South cared little about human beings – and there were over 500,000 deaths and millions of more devastating, life-altering injuries which occurred as a result of the War Between the States that gives expression to the proof of the truth of what is being said here.
Instead, the American Civil War was a tussle between governments each -- in its own inimical and reprehensible style, seeking to assert its supremacy over the people. In the process the people were denied many of the rights which had been allegedly vouchsafed to them in the amended Constitution.
In short, the states have made the same mistake as the federal government did. They each suffer from the delusion that only governments should have power, and, yet, the republican form of democracy is intended to return power to the people rather than take power away from them.
Following the Civil War, during the period of Reconstruction, there was a substantial transformation in the way in which the federal government and the justice system thought about the Tenth Amendment. During the War, the federal government expanded its powers considerably, and even though, once the war was over, some of the air was gradually let out of the expanded sphere of centralized, federal power, nevertheless, the constitutional landscape was never quite the same again.
For all intents purposes, the Tenth Amendment became largely inoperative for a number of years during Reconstruction. This was especially true with respect to many of the southern states who had lost the war and became occupied by Union soldiers, northern Carpetbaggers, and the like.
However, looked at from a different perspective – namely, that of the individual -- the Tenth Amendment, up to and including the period of Reconstruction, actually had been suspended for virtually the entire duration of the American republic. After all, the rights and powers of the people under the Tenth Amendment consistently were ignored and undermined while different branches of government fought for control over the people and, in the process, frequently denied that people, per se, had any Tenth Amendment rights.
To be sure, following the war, Congress did create a series of Freedmen's Bureaus. These Bureaus were responsible for constructing and implementing a variety of police powers with respect to the former slaves.
If the former slaves – or any other individuals for that matter – actually had any governmentally recognized Tenth Amendment rights, they could have gathered together to construct and implement their own police powers with respect to education, health, safety, and the like, as long as what was agreed upon did not affect the right of other individuals to exercise similar rights. If this had been done, there would not have been any need to create the Freedmen's Bureaus.
In Congressional terms, the slaves had been freed. However, in constitutional terms, the people who were freed were still enslaved by governments who believed that governments had the right to rule over the lives of individuals in a whole array of areas entailed by the idea of policing powers.
An imperial expansion of federal incursions into state governance was made possible through the passing of the Fourteenth Amendment (Section 1 – "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") As a result of this amendment, the federal government began to encroach upon areas of governance which previously had been assumed to be reserved for the states.
Ironically, within a hundred years after the passage of the Fourteenth Amendment, the three branches of federal government, along with the states began to act in collusion with one another to extend the protections of the Fourteenth Amendment to corporations who were required -- through the arbitrary, artificial, and unjustified invention of a legal fiction -- to be treated as 'persons' by the law and by governments. Over time, this legal fiction came to demand that all constitutional provisions -- including those of the Fourteenth Amendment -- be extended to corporations due to their alleged dimension of 'personhood'.
As a result, corporations are often extended a variety of powers, rights, immunities, and privileges by state and federal governments to which actual human beings are not even entitled. Meanwhile, actual human beings are still not considered to have any Tenth Amendment rights independent of a government's trusteeship or agency.
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In 1883, the Supreme Court ruled that the Civil Rights Act of 1875 was unconstitutional. The ground for striking down the statute was because it was repugnant to the Tenth Amendment.
Of course, what was actually meant by this sense of 'repugnance' was that it was perceived by the Supreme Court Justices of that time to be encroaching upon the rights of states. What is truly repugnant, however, is the manner in which the Supreme Court decided that the rights of states should have priority over the rights of people and that the Tenth Amendment rights of the people should be abolished once again and ceded to the states.
Despite a few judicial bones, such as the foregoing decision, which were thrown by the Supreme Court here and there to the states concerning the latter's alleged Tenth Amendment rights -- albeit with no real, discernible, intelligible pattern to the process of throwing – the general tendency of the Supreme Courts over the next several decades was toward diminishing support for state claims argued on the basis of the Tenth Amendment. Thus, in 1895 Congress created a statute which restricted the transporting of lottery tickets as a permissible activity in interstate commerce, and the act was upheld as constitutional in Champion v. Ames (1903).
On the surface, the purpose of the act was to exercise Congress' constitutionally delegated authority to regulate commerce among the states. However, the real motivation underlying the statute's creation was to police gambling … an activity which usually had been assumed by many to be reserved to the states.
While I don't condone gambling and believe that much harm comes into people's lives as a result of it, under the Tenth Amendment, people – not states -- should have a right to exercise their own authority in this area unless the exercise thereof can be shown to be harmful to the rights of others – such as one's family or children or one's emotional and psychological stability or one's ability to look after one's responsibilities … and, then, one loses the right to use the Tenth Amendment as an argument for choosing as one would like to. The Ninth and Tenth Amendments do not give one license to act irresponsibly or to act in a way that undermines the capacity of other individuals to enjoy their Ninth and Tenth Amendment rights.
Policing the morality of individuals is not necessarily the prerogative of either the state or the federal government. If individuals transgress the boundaries of community or neighborhood or family propriety through their choices and actions, then there ways of handling such issues -- such as mediation, arbitration, group intervention and the like – other than through law enforcement.
Legally punitive methods of seeking to regulate people's behavior should only be a very last resort … after all other non-punitive measures have been explored and exhausted. More often than not, all that governmental intervention into the realm of morality brings about is: an increase in crime; the establishment of self-serving and self-perpetuating forms of governmental bureaucracy; ineffective and inefficient methods of dealing with the problem; an increase of expenditures to the taxpayer, and a lot of lives which are ruined through the lowering of government-created legal hammers that often fail to address the underlying causes of pathological or problematic behavior.
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In McCray v. United States (1904), the Supreme Court ruled in favor of a congressional law which placed a substantial excise tax on oleomargarine. In effect, using the rationale that Congress was merely exercising its constitutionally granted power to levy taxes for the purposes of providing for the general welfare, Congress was actually seeking to leverage its power in order to be able to police the general populace in relation to health issues.
Even if one were to agree that by placing a high tax on oleomargarine in order to discourage its purchase while, simultaneously, encouraging people to choose, say, butter, and that, thereby, Congress accomplished something which we will assume for the purposes of discussion could be shown to be medically and scientifically of benefit to the general welfare of the people, this, in and of itself, does not justify Congress passing such an act. It is not the duty or right of Congress to take it upon itself and seek to unnecessarily constrain how people live their lives or to penalize them if the people do not choose to live in accordance with what Congress deems to be best for them.
The general welfare is not necessarily a matter of what Congress says it is or would like it to be. The general welfare is a function of a complex set of variables which give expression to the choices that people make as they seek to maximize their quality of life … choices that consist of a series of trade-offs between that which is potentially beneficial and that which is potentially injurious … choices which constitute so many explorations (whether thoroughly done or superficially done) into the area of risk-assessment amidst the circumstances of life.
Congress doesn't have the right to take away the Ninth and Tenth Amendment powers of the people with respect to the manner in which citizens, each in her or his own individual way, go about making choices concerning: the character of life they would like to live, the risks which they are willing to run, or the overall shape of the welfare package which results from the many trade-offs of life. The people don't elect representatives so that the latter can establish a dictatorship about how the people must live their lives, but, rather, the people elect representatives to constructively assist the citizenry in ways that most people can agree upon as being good things to do without simultaneously oppressing the people or undermining the people's basic rights, powers, privileges, immunities and liberties.
The general welfare is a balancing act among three things: (1) enabling people to be able to take advantage of their basic rights, powers, and freedoms so that they may gain control over their own lives; (2) putting into motion programs (e.g., universal health care; livable wages for workers; the removal of all corporate influence from the running of government; elections which are free of the corrupting influence of donations from vested interests and free from the artificial barriers that are placed in the way of establishing a level playing field with respect to acquiring public office) which are designed to constructively benefit everyone in a manner with which the vast majority of people (and not just a simple majority) agree and to which they consent; (3) placing only the sort of minimal constraints on the people as are necessary to achieve points (1) and (2). A shorter way of saying the foregoing is that: "We hold these truths to be self-evident, that all [humans] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness" … and even if someone chooses not to believe in a Creator Who has endowed all humans with such rights, I believe they will agree that from whatever the source such rights may come, all human beings are entitled to certain inalienable rights which include, but need not be restricted to, life, liberty and the pursuit of happiness.
As pointed out earlier, the Ninth Amendment was originally introduced to specifically repel the possibility that Congress might seek to pass legislation which would undermine and abridge freedoms and rights that were not specifically mentioned in the first eight amendments of the Bill of Rights. When Congress begins to wave about the principle of the general welfare and attempts to use this principle as a rationalization for why it does what it does, Congress is moving into areas that were specifically prohibited to it by the Ninth Amendment.
When elected representatives of the people begin seeking to entangle the people in various ideological theories about what constitutes the general welfare, the members of Congress are exceeding the authority which has been given to them by the amended Constitution. Congress has only as much power as is consistent with, among other things, the principles inherent in the Preamble, the guarantee of a republican government to the people of the various sates, the Bill of Rights, and the protection against "involuntary servitude" inherent in the Thirteenth Amendment … or, said in another way, the actions of the Congress are completely delimited by the rights, powers, liberties, privileges, and immunities of the people.
It is not the right of Congress to tell the people what to do. Rather, it is the right of the people to tell Congress (as well as other elected or appointed officials) what to do.
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The New/Old Common Sense And The Rights of Human Beings
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