The U.S. Constitution

[y_feldblum]

The preamble to the Constitution, by way of being but an introduction stating the purpose of the document, does actually grant the Federal government any powers or authority. The powers are explicitly granted elsewhere. In fact, it is the purpose of the people to provide for the general welfare etc. by establishing a government with certain delimited powers. This is a statement of the ends and the means. Explicitly, the ends are to be attained by a certain means, and not by any other means.

The Constitution gave the houses of the legislature the authority to define and implement their own internal rules of procedure.

In fact, read the Constitution, and see that a specific, defined, and delimited set of powers is enumerated (section 1.8), and then read the ninth and tenth Amendments and see that the powers granted to the government are indeed limited, that government may not use its powers to trample individual rights, and that any power not explicitly granted to the Federal government or explicitly denied to the State governments is not authorized to the Federal government.

Seriously, it's all there.

[nimble]

What specifically is flawed in the US Constitution? Please include Article Section and Clause, if applicable. What would a completely rational and capitalistic Constitution look like? Has anyone ever written one up?

The problem with the US Constitution was that it was printed on paper rather than on the hearts of every US citizen.

[y_feldblum]

It was printed on the hearts of every US citizen. Then the German philosophers of unreason infiltrated the country.

[DavidOdden]

In fact, read the Constitution, and see that a specific, defined, and delimited set of powers is enumerated (section 1.8), and then read the ninth and tenth Amendments and see that the powers granted to the government are indeed limited, that government may not use its powers to trample individual rights, and that any power not explicitly granted to the Federal government or explicitly denied to the State governments is not authorized to the Federal government.

Well, 1.8 says among other things that Congress has the power to provide for the general welfare, and there is no denying that having roads, running water and electricity, among other things, provides for the well-being of people. You are better off with water and power than you are without it. Now turning to the 9th amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") and the 10th ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"), I don't see what part says that providing for the general welfare is not a power granted to the federal government. It does not mention providing water or roads (which as it happens the feds to not do now anyhow), so as a specific case of "the general welfare" I fail to see where the conflict is between an interpretation of 1.8 as allowing Uncle Sam to provide for food and housing, and the 10th Amendment. By allowing something general, the "general welfare", the Constitution allows any specific instance of that generality.

Of course it's true that the federal government does not provide water. But it does regulate business via anti-trust laws, such as 15 USC 1 "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal" or 15 USC 2 "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony...". The commerce clause gives the federal government the power to do this. The commerce clause refers not to specific acts, but all acts having to do with commerce between states and foreign nations (and Indians). It does not say "Congress only have the power to enforce contracts between parties of different states", it speaks very generally of regulating commerce.

[y_feldblum]

"The general welfare" is not a class of powers granted to the government. It is one among several purposes for those specific powers which are granted to the government: eg, I suppose post offices and post roads have as their purpose "the general welfare". The Constitution does not grant the government any and all powers that will serve to bring about "the general welfare", only those that it explicitly grants the government in order to bring that about.

"The general welfare" is not a general class of powers; it is a purpose. It is one purpose of establishing a government. The preamble, translated, reads: "We are establishing a new government for the following reasons: we wish to ensure justice, and the protection of our rights, and the general welfare. Further on, you will find what exactly the government is to do in order to bring about these things."

Yes, the commerce clause does grant the Federal government the power to regulate interstate commerce, unfortunately. That has nothing to do with my point. Which is: why does the big list or powers exist, if not to be the big list?

[DavidOdden]

"The general welfare" is not a class of powers granted to the government. It is one among several purposes for those specific powers which are granted to the government: eg, I suppose post offices and post roads have as their purpose "the general welfare".

Yes, clearly "general welfare" is not a power, it is an excuse for power. That is, the government is empowered to do whatever it feels it must do to promote a general state of welfare. That explains why we have federal agencies that feed the foodless, educate the clueless, and employ the useless.

1.8.7 gives the power to establish Post Offices and post Roads, but does not give the power to maintain such offices and roads, nor does it give power to levy taxes to pay for the construction of said offices and roads, nor does it explicitly empower Congress to actually hire anyone or to take property (under the Takings Clause) for these offices and roads. All of this is implicitly covered by the general empowerment in 1.8.7, which says "you may establish post offices and post roads", necessitating and thus authorizing other actions in order to do this. In order to provid for the general welfare, Congress must also necessarily do some other things.

Yes, the commerce clause does grant the Federal government the power to regulate interstate commerce, unfortunately. That has nothing to do with my point. Which is: why does the big list or powers exist, if not to be the big list?

Our friend, expressio unius. With a decent judiciary, this would be a compelling argument. So can you specify particular powers actually usurped by the feds which you think are concretely disallowed under the Constitution? The proiblem with applying expressio unius to section 8 is that 2-18 are not specifically subordinated to clause 1. If clause 1 had ended with "Specifically, The Congress shall have Power to:", then there is absolutely no question that what follows is a specification of what taxes, debts, defense and welfare refers to. People have lost their property, been imprisoned, or even been executed because of crappy punctuation and dumb legal drafting. This is why the Constitution needs a fundamental purposive axiom, which dictates a principle according to which the wording is to be interpreted. The Takings clause would be an example.

[y_feldblum]

What indicates to you - what evidence do you have - that the Constitution authorizes the Federal government "to do whatever it feels it must do to promote a general state of welfare"?

1.8.18 authorizes the Federal government "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers". This, like all other actual authorizations of power in the Constitution, is explicit.

The Constitution does not mandate that the Federal government "provide for the general welfare." Merely, the purpose of the people in establishing a Constitutional and republican form of government is to provide for the general welfare. That proposition is very clearly communicated in the Preamble. The idea is, the general welfare is best served not by an absolute monarchy, but it is best served by a Constitutional republic, ie, a government with precisely defined and very limited powers.

As one example, as per your request, the Constitution does not authorize the Federal government to establish or support public schools.

Amendment 10 reads, "The powers not delegated to the United States by the Constitution [...] are reserved [...] to the people." All the powers delegated to the Federal government by the Constitution are delegated in Article 1, Section 8. Thus it is clearly and explicitly equivalent to your "Specifically, the Congress shall have Power to:". There is absolutely no question that what precedes is a specification of what powers the Federal government is authorized to have.

[Captain Nate]

I agree, feldblum. I view the "General Welfare" clause as a restriction -- or guidance -- for the Federal Gov't. The Congress can lay taxes, but those taxes cannot be harmful, but must be done in a way to promote the General welfare of the nation. They can raise an army, but that army must be only used for the general welfare of the nation, not against its own people maliciously. And so on.

[HaloNoble6]

But what is "the general welfare of the nation?" What is "the nation?"

[Captain Nate]

But what is "the general welfare of the nation?"  What is "the nation?"

The collection of individuals living under a single government. Don't confuse nation with society, I'm not speaking of violating the rights of one person for the good of a non-entity like society, I'm talking about acting in order to preserve the nation, which DOES exist and should exist so long as it protects the rights of its citizens.

[jrs]

The welfare clause says that Congress has the power to provide the "general welfare", whatever that is. It's right there in black and yellow -- constitutional authorization for the welfare state.

Yes, clearly "general welfare" is not a power, it is an excuse for power. That is, the government is empowered to do whatever it feels it must do to promote a general state of welfare.

I agree with y_feldblum on this matter. And I disagree with DavidOdden.

The preamble is not a grant of power; it is merely a statement of the purpose of the constitution. "promote the general Welfare" is archaic language -- it is not talking about relief for the poor; it is talking about activities (like national defense or building bridges) which make life better for everyone.

Article 1, section 8, paragraph 1 says "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;".

In this paragraph, "general Welfare" is part of a limitation on the purposes for which taxes may be collected. For example, it would be unconstitutional to collected taxes so that they could be given to Donald Trump for his personal use, because that would not be paying a debt nor defending the nation nor promoting the well-being of Americans in general.

[DavidOdden]

In this paragraph, "general Welfare" is part of a limitation on the purposes for which taxes may be collected.

All I really want to know is what your basis is for this claim: how do you know that this is what 1.8 explicitly says.

[y_feldblum]

jrs, it would be unconstitutional to collect taxes to give to Donald Trump because giving money to Donald Trump is not one of the specific 17 powers which the Constitution authorizes the Federal government. Whether it is or is not beneficial to the general welfare is immaterial to the question of constitutionality.

[jrs]

DavidOdden: The quote I gave was from one of several copies of the Constitution which I own. In this case, it was the pocket size version which the Cato Institute has mailed out in abundance.

I am sorry, if it appeared that I was claiming some special knowledge. I do not have any. I was just giving my understanding of the quote.

Based on my memory of having read the Constitution many times, I think that these are the only two times that "welfare" is mentioned in the Constitution. For completeness, I wanted to interpret both of them.

y_feldblum: Yes. Giving money to The Donald would be unconstitutional even without this clause. But the constitution is sometimes redundant, as many documents are. Someone once said that you must repeat yourself, if you want to be understood. I have heard that advertisers figure that a potential consumer must see an advertisement at least five times before he remembers it.

By the way, there are some grants of powers over ordinary people outside of article 1, section 8, to wit:

original constitution:

1.2.3: conduct a census every ten years.

1.9.2: suspend the writ of Habeas Corpus "when in Cases of Rebellion or Invasion the public Safety may require it".

2.2.2: make treaties which affect the rights and privileges of Americans.

2.4 & 3.3: Treason and Bribery are made crimes.

3.2.1: subject Americans to the jurisdiction of national courts in some cases.

4.2.2: fugitives must be arrested and sent back.

amendments:

3: soldiers may be quartered in private homes during war.

4: search and arrest warrants allowed in some cases.

5: service on grand juries; eminent domain.

6: service on petit juries; service as a witness.

7: plaintiffs in civil cases must submit to trial by jury, if the defense wants one.

13: punish slave-holders.

14: punish discrimination; cancel confederate debts.

16: income tax imposed.

21: prohibition (of intoxicating liquors) continued in dry states, counties, and territories.

[Captain Nate]

By the way, there are some grants of powers over ordinary people outside of article 1, section 8, to wit:

Article 1, Section 8 speaks only about Congressional powers. However, you'll note that many of these examples are RESTRICTIONS on government, not powers.

original constitution:

1.2.3: conduct a census every ten years.

How does a census affect the lives of a nation's people? It is necessary in order to establish a representative legislature. It's not a power so much as a necessary function.

1.9.2: suspend the writ of Habeas Corpus "when in Cases of Rebellion or Invasion the public Safety may require it".

This is actually a restriction on Habeus Corpus suspension, not the power to do so:

The privilege of the Writ of Habeas Corpus shall not be suspended' date= unless when in Cases of Rebellion or Invasion the public Safety may require it. (Emphesis added)

2.2.2: make treaties which affect the rights and privileges of Americans.

This is a power of the Executive, checked by the Congress. That is why it doesn't appear in 1.8

[i2.4 & 3.3: Treason and Bribery are made crimes.

First example Treason and Bribery are made crimes for the President, not for the average citizen. Second example is a RESTRICTION on the punishment power of the government as it relates to the Judiciary.

3.2.1: subject Americans to the jurisdiction of national courts in some cases.

Again, this refers to the Judiciary and subjecting citizens to the courts of your nation isn't an expanspower9;s obviously part of the judic9;ion.

amendments:

3: soldiers may be quartered in private homes during war.

Again, you'll note that this is a RESTRICTION on the power of government.

[y_feldblum]

Captain Nate is correct as to his comprehension of the Constitution.

In emergencies, such as times of war, government will do such things as quarter soldiers in private homes, suspend certain civil rights of the indicted, and seize property. Doing these things is not Constitutional, but there is no time for Constitutionality in emergency situations. During an emergency such as an invasion, government will likely take those powers. See "The Ethics of Emergencies", The Virtue of Selfishness, Ayn Rand.

However, the Constitution sets strict limits for those cases: government may not quarter its soldiers anytime else and the army may not quarter soldiers capriciously but only as legislated; government may not suspect any civil rights during peacetime; and no power to seize property for government use is actually authorized to the government.

The normal, non-emergency, non-invasion powers of government are clearly laid out and strictly delimited in Article 1, Section 8. Confirmation that government does not have the authority to override citizens' individual rights, even though the power to do so may apparently be authorized in Article 1, Section 8, can be found in Amendment 9. Confirmation that these are the only powers Constitutionally authorized to government is contained in Amendment 10. It's all there.

[jrs]

Following the principle exclusio unius, the clause which says "nor shall private property be taken for public use, without just compensation" implies that the government does have a right to take private property, ...

Article 1, Section 8 speaks only about Congressional powers. ...  you'll note that many of these examples are RESTRICTIONS on government, not powers.

The issue here is the powers the national government as a whole over individuals, not just Congress's powers.

It is ironic that many of the powers are only mentioned by way of giving exceptions to them in the Bill of Rights. If the tenth amendment were taken seriously, those powers would not have existed at all; and thus those provisions in the Bill of Rights would be unnecessary. But as DavidOdden correctly points out, the specification of an exception to a power implies the existence of the power. Thus these provisions amount to grants of power.

How does a census affect the lives of a nation's people?

Many people regard the census (especially the long form) as an invasion of their privacy. There is a fine which could be imposed on people who refuse to cooperate with the census. The census is unnecessary because the population could be determined from voter registration records; and if someone chooses not to vote, then he should not be represented anyway. Whether necessary or not, the census provision is a grant of power over people.

Again, this refers to the Judiciary and subjecting citizens to the courts of your nation isn't an expansion of power, it's obviously part of the judiciary's function.

If it is obvious, then why is it mentioned? And why is it limited to some defined cases rather than all cases?

...  there is no time for constitutionality in emergency situations.

...  government will likely take those powers.

........

However, the Constitution sets strict limits for those cases ...

So you are saying that the government will ignore the Constitution during emergencies; but the Constitution limits these unconstitutional power grabs. Is this not an absurdity?

If you accept this power grab, then you are endorsing the doctrine of inherent power -- the government has whatever power it thinks it needs whether it is granted by the people thru the Constitution or not. This doctrine is the road to tyranny.

[Captain Nate]

The issue here is the powers the national government as a whole over individuals, not just Congress's powers.

Congress has the power to legislate, which means most of the power comes from them. But there are powers listed throughout the Constitution, but Congress (supposedly) weilds the most power because they decide what the government ultimately will or will not do. But their power is severely limited to those enumerated in Article 1, Section 8, which includes:

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.

Their power is clearly supposed to be limited to the powers granted by in the US Constitution.

It is ironic that many of the powers are only mentioned by way of giving exceptions to them in the Bill of Rights.

For instance?

Many people regard the census (especially the long form) as an invasion of their privacy.  There is a fine which could be imposed on people who refuse to cooperate with the census.

That is not a problem with the census as mentioned in the Constitution, but a problem with what the census has become.

If it is obvious, then why is it mentioned?  And why is it limited to some defined cases rather than all cases?

I don't understand what you're saying. It's mentioned for clarification, it's part of the founding document and not a "power grab." I guess I don't understand the point you're trying to make.

So you are saying that the government will ignore the Constitution during emergencies; but the Constitution limits these unconstitutional power grabs.  Is this not an absurdity?

During an emergency, the Federal government becomes more important, its power is expanded. The States and the people are protected from that power from limits in the Constitution itself to keep the federal government from using such an emergency as an excuse to violate the rights of the states and their people within them.

[DavidOdden]

I don't understand what you're saying. It's mentioned for clarification, it's part of the founding document and not a "power grab." I guess I don't understand the point you're trying to make.

The point is, and has been all along, that The Constitution is really poorly written. It is massively unclear. The Founding Fathers are not to blame, because they could not have know what was going to happen to the instrument that they created (both The Constitution and democratically elected government). But still, as a legal instrument, The Constitution has massive holes and innumerable ambiguities in it. There is no place where The Constitution does state that Congress has the power to confiscate land for any purpose at all, even if there is compensation. So what in the world is the purpose of the Takings Clause? How can it have any effect, if there is no power to take in the first place? Isn't it kind of psychotic for lawmakers to say "nor shall private property be taken for public use, without just compensation" unless the power to take private property is implicit. Why is there an amendment that declares that the government may not establish a state religion? That makes absolutely no sense at all, if you assume that The Constitution only allows the government to do what is explicitly listed.

The answer ius clearly that they did not assume the "explicit list" view of government powers. They use broad terms to indicate the general kinds of areas that they thought would be appropriate and mandatory as areas of federal government control, and explicitly mentioned a number of things that they did not want the government to be able to control, leaving the rest open for interpretation. Unfortunately.

[Free Thinker]

The point is, and has been all along, that The Constitution is really poorly written. It is massively unclear. The Founding Fathers are not to blame, because they could not have know what was going to happen to the instrument that they created (both The Constitution and democratically elected government). But still, as a legal instrument, The Constitution has massive holes and innumerable ambiguities in it. There is no place where The Constitution does state that Congress has the power to confiscate land for any purpose at all, even if there is compensation.

I agree with your assessment and conclusion; but I want add some of my thoughts. I believe that a person's ideas can only come from context of knowledge, i.e. the sum total of all existing knowledge. The Founding Fathers, as you pointed out:

The Founding Fathers are not to blame, because they could not have know what was going to happen to the instrument that they created (both The Constitution and democratically elected government).

because the idea of individual rights and of liberty were a recent invention (the Enlightenment) i.e. a new expansion of their knowledge.

[y_feldblum]

The Constitution is actually very clear, very precise, and very well written.

A charter authorizes to that which is chartered certain powers and no more. That is in the nature of a charter. The Constitution conceived of - and clearly communicated - a government with only the defined and delimited powers authorized to it. It did not conceive of an amorphous blob with infinite identity or with implicit liquidity of definition.

There is no authorization of power in any of the first ten Amendments, neither explicit nor implicit. The purpose of the first ten Amendments is to make very, very explicit the absolute ban on government trampling upon individual rights. It is so even though it is already implicit, in the fact that the Federal government is not explicitly authorized to trample upon individual rights, that the government is barred from doing so.

[jrs]

In my list of powers of the national government over individuals, I forgot to list the two biggest of all:

article 5: to amend the constitution in ways which deprive a person of his rights, privileges, powers, or immunities without his consent.

article 7: to establish a constitution in the first instance which allows (and even requires) violations of a person's freedoms without his individual consent.

In all criminal prosecutions, the accused shall enjoy the right ...  to have compulsory process for obtaining witnesses in his favor, ...

Notice that this provision REQUIRES the United States to violate the rights of witnesses.

During an emergency, the Federal government becomes more important, its power is expanded.

If one wants to be able to deal with emergencies without accepting the doctrine of inherent power, then one should have a list of emergency powers and give criteria for when they may or may not be used. See the habeas corpus provision (1.9.2) for an example (albeit a poor one).

...  they did not assume the "explicit list" view of government powers. ...  leaving the rest open for interpretation.

Yes, unfortunately.

A charter authorizes to that which is chartered certain powers and no more. That is in the nature of a charter.

IF the Constitution were merely a contract or treaty among the States, that would be true. But the Civil War established that that was not the case -- it removed those limits.

There is no authorization of power in any of the first ten Amendments, neither explicit nor implicit.

See my quote above from the Sixth Amendment for a counter-example.

[Captain Nate]

Just as a fun project, I recently looked over and re-worked some aspects of the US Constitution to bring it more in-line with Objectivist principles. Now, I'm sure it's not perfect, so I'd like your thoughts:

Here it is with the original text. The amendments have been incorporated into the main body, unless they have been struck out.

http://www.gammabase.com/constitution/Cons...n-reworked.html

Here it is, stand-alone:

http://www.gammabase.com/constitution/Constitution-New.html

[jrs]

The ball has been set in motion. Under "Government", there is an entry to "Constitution" (here)).

Just as a fun project, I recently looked over and re-worked some aspects of the US Constitution to bring it more in-line with Objectivist principles.

Captain Nate, I suggest that you integrate your ideas into the Objectivist Wiki which has a proposed new constitution for the United States in it. In the Wiki which is part of this website:

Go to "Government" under Politics.

Go to "constitution" which is the 11th word of the 5th paragraph.

Go to "new constitution".

[FeatherFall]

The fact that rational, apparently well educated people are arguing the interpretation of the constitution is evidence that supports the claim that the constitution is poorly written. I think many of the criticisms submitted can be cleared up by David Odden's post #2. Suggestion 1-3 would solve the problems referenced in the following posts:

#3(Oakes's post regarding the establishment of ideas)

When properly interpreted with reference to individual rights, the first amendment bars state sponsored religion and schools. If one has the freedom to express ideas, it follows that one cannot be forced to promote ideas.

#6(Coire Fox's objections)

The government would not be able to establish pro-active programs if laws are applied to the crucible of suggestions 1 and 2. If I have still missed a dangerous lack of clarity that would lead to a choice as to which provisions (David's suggestions or The Necessary And Proper clause) the government must follow - that still isn't cleared up by suggestion 3 - then I refer you to my suggestion in an upcoming post.

#57(y_feldblum's post)

The Constitution does not mandate that the Federal government "provide for the general welfare." Merely, the purpose of the people in establishing a Constitutional and republican form of government is to provide for the general welfare. That proposition is very clearly communicated in the Preamble. The idea is, the general welfare is best served not by an absolute monarchy, but it is best served by a Constitutional republic, ie, a government with precisely defined and very limited powers.

In post #59, Felipe raises some good questions. Even precisely defined powers can be limited in a way that violates the rights of an individual. Only a constitutional republic that not only recognizes individual rights, but is based upon them and devoted to their proper interpretation and protection, is just. Our current constitution may have been created with this intention, but a better job can be done.

#61 (James Richard's Post)

"promote the general Welfare" is archaic language -- it is not talking about relief for the poor; it is talking about activities (like national defense or building bridges) which make life better for everyone.

In this post James references the archaicness of language in the constitution. Wouldn't many misinterpretations of the constitution due to time-induced language corruption be cleared up by David's suggestions in post #2?

Assuming the preamble to be an authoritative guide to interpretation of the articles of and amendments to the constitution, there is still no guarantee that protection will be given to the right of the individual. Even a government limited to a constitution can be confined to actions that violate rights, such as taxation. Again, David's suggestions in post 2 are helpful to solve problems of intent and clarity.

#68 (Captain Nate's census corruption issue)

If the census has been corrupted over time, wouldn't it's implementation today benefit from the interpretation guide outlined in David's post #2?

Again, I agree with everything David Odden suggests in post #2, but I would like to bring up an interesting point: If government taxation is voluntary then no rights are actually violated by any welfare expenditure. Because the financial burden of a welfare program is likely to overburden the government, voluntary contributors are less likely to give to a state that gives welfare handouts - this makes suggestions 1 and 2 so very important. In fact, it makes voluntary funding dangerous if David's suggestions in post #2 are not adopted.

-Enough championing someone else's ideas. Original suggestions and elaborations to come.

Edited September 15, 2005 by FeatherFall