Daily Archives: November 6, 2010

The Founder’s Lockbox

By Jerry McDaniel

Unlike the fictitious Social Security lockbox, the Constitution contains a lockbox for the federal government. That box is the list of enumerated powers found in Article One of the Constitution, and the lock is the Tenth Amendment in the Bill of Rights. In Houdini like fashion, the government has escaped from the box over the past century, using the Seventeenth Amendment to open the lock. Our task in the twenty first century is to stuff it back into its box and reclose the lock.

Bracketed between the first and nineteenth clauses of Article I, Section 8, is a comprehensive list of all the powers delegated to the federal government; or to put it another way, a list of those things the federal government is charged with managing on behalf of the American People; namely, those that cannot be adequately managed by the states or individual citizens. This is the “lockbox” intended by the Founders to contain the federal government.  Clause One introduces the enumerated powers and describes the taxing powers of the government and Clause Nineteen describes the conditions all laws passed by Congress must meet. Clause One reads,

“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; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

This clause list three purposes for which Congress is allowed to lay and collect taxes, debt, defense, and welfare. The two key words are “common” and “general”. Under common defense, the Feds are allowed to tax us for the collective defense of all the states and territories making up the United States. It does not authorize taxing in order to provide block grants for law enforcement activities within individual states,  to protect individual citizens against insults and unkind treatment by other citizens, our own unwise decisions, or to protect us from the proselytizing efforts of various religious groups.

Neither does it authorize Congress to tax us for the defense of other nations, unless the defense of that nation is directly related to our own national security. Border security, anti-drug smuggling and human trafficking, etc. are legitimate functions of the federal government because they are for the “common defense” of all the states. International defense against terrorism is also a Constitutional power that falls under this clause because international terrorist organizations have declared war on America.

The same principle applies to “general” welfare. As Thomas Jefferson pointed out in his report to George Washington concerning the chartering of a National Bank, Congress does not have the power to tax for any purpose that might be thought to promote the welfare of citizens but only for the general welfare of the nation as a whole and extending only to those enumerated powers listed in the Constitution. Taxing one group of citizens in order to provide for the welfare of another group of citizens is not countenanced by the Constitution. Most of the “earmarks” that are used by Congress members to “buy votes” only improve the welfare of a limited number of citizens therefore are unconstitutional. The famous “bridge to nowhere” would have benefited only a small number of the citizens in Alaska, for example.

The phrases “common defense” and “general welfare” also make up the litmus test for the laws authorized by clause nineteen, which reads,

“[Congress shall have the power…]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.”

The key words here are “necessary”, “proper” and “foregoing”. Keep in mind that clause eight is a single, compound sentence made up of nineteen clauses, separated, as James Madison pointed out, by “nothing stronger than a semicolon”. The word “foregoing” refers only to the enumerated powers listed in clauses two through eighteen, all of which fall under the headings of common defense or general welfare. Thomas Jefferson pointed out that the word “necessary” applies only to those laws without which an enumerated power could not be carried into execution. This is the first test as to whether a law is constitutional or not. Necessary does not have the same meaning as “facilitate” or “make more convenient“.

The second test of constitutionality under this section is, is it proper? Does the law fulfill the purpose set forth in the introductory clause of providing for the common defense or the general welfare of the nation? If it does not it is not “proper” for the purpose and is therefore, unconstitutional.

Someone has said, “the power to tax is the power to enslave” however, repealing the Sixteenth Amendment or reforming our tax code is a useless exercise until we first return the federal government to its constitutional lockbox. Regardless of the form it takes, the American people have to be taxed eventually in order to pay for government spending since the only income it has is what it is able to squeeze out of the taxpayer. The only way to establish and sustain lower taxes is to limit government spending to those things included in the enumerated powers section of the Constitution. That is our challenge for the twenty-first century.