Skip to comments.If there really is a 'general Welfare' clause then why ...
Posted on 03/20/2010 11:05:24 AM PDT by Rurudyne
If there really is a 'general Welfare' clause then why doesn't the language of the 10th Amendment mirror that of the 9th to read: 'The enumeration in the Constitution, of certain Powers, shall not be construed to deny or disparage others deemed necessary to provide for the common Defence and promote the general Welfare of the United States of America.'?
... but instead reads: "The powers not delegated to the United States by the Constitution, prohibited by it to the States, are reserved to the States respectively, or to the people."
I mean, since the 10th Amendment was in no small measure adopted in response to arguments about the meaning of A1:S8:C1 AND the hypothetical language was obviously known to those who wrote the 10th Amendment since they used similar language in the 9th....
“The government has deemed itself a person and therefore believes it has the right to use the term as it is applied to persons becaue the term as it is applied to states & governments is too limited.”
Of late I’ve been using a similar notion: Sovereignty.
One of the principal causes for the American Revolution was the growing awareness that the Crown and its Ministers (or even Jurist) could essentially recast the English constitution at will to suit them.
They could do this because the King was a Sovereign and his Ministers and Jurist were able to exercise this Sovereignty on his behalf.
But the United States federal government is more akin to a chartered corporation than a Sovereign Person (which may help raise your point to its clearest light). Thus Chief Justice John Marshall wrote: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.”
... and as for the rule of the courts, Marshall wrote: “From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.”
So there is no hint, especially under Marbury when taken in proper context, that the federal is to be sovereign over itself to be able to further establish and define its powers by ordinary means available at its disposal (legislation, executive orders, opinions and the like).
THAT power, Sovereignty over the Constitution, IS retained within the specific context of Article 5 and Article 5 alone.
That means that ultimately WE THE PEOPLE are Sovereign over our government (echoing the DoI no less) but only within a specific context (amendment ... not mere elections) are we able to work out that Sovereignty for ourselves and our Posterity.
The you have to ask yourself: do amendments generally function globally or do they also have ‘original intent’ that must be taken into account?
For example, the 16th Amendment was sold on a soak the ultra rich basis and not as a way to heavily tax the lower and middle classes. As a matter of intent one can say this is what the States as Sovereigns signed off on and nothing else.
Now, as per Corfield v Coryell one of our common law Privileges and Immunities was an exemption to paying higher taxes than other Citizens. Given that there was no other body of rights retained by the people at the time that the 9th Amendment was adopted it logically follows that these SAME P&I mentioned in A4:S2:C1 are also the rights that are the “others retained” in the 9th Amendment.
So, one could look at the 9th Amendment and opine that all progressive taxes are unconstitutional EXCEPT for those on the ultra rich BECAUSE the intent of the 16th Amendment altered this with respect to the federal (but not with respect to the States).
So, using the principal that amendments too have intent that may limit their application I feel safe to opine that any federal income tax that has more than two brackets one more dear that only affects the ultra rich is and should be deemed unconstitutional.
Here’s what Thomas Jefferson had to say about it:
“I consider the foundation of the Constitution as laid on this ground: That “ all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition....
“To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that of instituting 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 the good or evil, it would be also a power to do whatever evil they please.
It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect.
“General welfare” doesn’t mean 2/3 of the nation gets to sit on it’s arse and be fed by the remainder!
The 10th Amendment has been used as a door mat by the Congress. Our Founding Fathers knew that the states and local governments needed protection from an over zealous power in Washington DC. To them it seemed clear each level of government had specific responsibilities to its constituency that should NOT be performed/executed by another level/gov’t sovereign. Thus creating two sovereigns: one federal and one state.
However the federal Government using the Commerce Clause has extended its reach into virtually every aspect of American life, usurping state power. It started with a lawsuit involving the National Labor Relations Board back in the 30’s-40’s time frame (FDR’s New Deal).
Subsequently it has been used and abused by our Washington DC politicians for numerous reasons one being the proliferation of unfunded mandates. It has made the states subservient and secondary to the federal government. State sovereignty is pretty much dead and the 10th Amendment a step-child if that of the Constitution.
Isn’t this basically why the colonies rebelled against the King and England way back when. Can the states revive their rightful sovereignty as delineated by the 10th Amendment ... that remains to be seen.
Chief Justice John Jay stated in his deciding opinion in Chisholm v. Georgia, the first great constitutional case decided after the ratification of the Constitution of 1789:
[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State
[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects ] they have NO power to force us to purchase anything just because we are citizens or inhabitants. This is further upheld in the constitution by the 14th, the 15th & the 24th amendments. Our God given liberties & rights under the constitution can not be abridged by threats of fines, imprisonment or taxes levied against our property. Therefore mandates that come with threats of fines/taxes/imprisonment affixed against those who choose not to purchase the type of insurance the govt deems they should is WHOLLY UNCONSTITUTIONAL. HARPER v. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663 (1966)
This legislation is race based and is choked full of immunities for certain 'classes' of people and it WILL be defeated. Either in Congress or in the courts.
The Bastards were the FDR judges on Scotus who crapped on almost 300 years of common sense. FU
What is right and wrong and Constitutional is somewhat subjective.
There are needs for taxes and Congress has the authority to levy taxes.
However, is it morally right to legally force one group to pay for the sustanance of others?
Since I’m of the opinion that since God didn’t ask Isreal for more than 10% of their increase, government shouldn’t get a cent more than that from individuals no matter how they get it.