The General Welfare Clause

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

The General Welfare Clause is one of the most distorted and misunderstood parts of the Constitution.  A lot of people today – including the Supreme Court – will tell you that it grants the federal government a separate power to provide for the “general welfare of the United States.”  In other words, that Congress has the authority to do whatever is in the best interests in the country.

It seems like common sense that no one who was trying to create a limited government would decide to give Congress this kind of broad, unrestricted power.  Despite that, this can be a tricky topic to debate.  To help you the next time you have to explain the obvious to someone, I’ve prepared a crash course for you on the General Welfare Clause.

Below is an explanation of the meaning of the General Welfare Clause, along with four reasons why is simply cannot be a separate grant of power – all broken down into individual arguments that you can use.

What does the General Welfare Clause mean?

- This clause has two parts – a power and a purpose.  The first half grants the power to “lay and collect Taxes, Duties, Imposts and Excises”.  The second half gives the purpose that this power is to be used for – “to pay the Debts and provide for the common Defence and general Welfare.”

“Is this an independent, separate, substantive power, to provide for the general welfare of the United States?  No, sir.  They can lay and collect taxes, etc.  For what?  To pay the debts and provide for the general welfare.  Were this not the case, the following clause would be absurd.  It would have been treason against common language.”

Edmund Randolph, June 15, 1788

- The General Welfare Clause is actually a restriction on Congress rather than a grant of broader power.  It is a clarification that the power to lay taxes, etc is to be used for the general welfare (the good of the whole country) rather than the specific welfare (a certain state, region, group, etc.).

- In other situations in life, the meaning of a clause like this would be obvious.  For example, imagine that parent leaves a note for his teenage son that reads:

“You have permission to use the car keys and the $20 that are laying on the table, go to the football game and have a good time. ”

It’s pretty clear that the son is being given permission to use the keys and the money for the purpose of going to the football game.  No one in their right mind would argue that “have a good time” is a separate grant of permission for the boy to do whatever he thought would be fun.  But the way that the General Welfare Clause is currently interpreted would be like the son in this example going to an all night drinking party and then claiming, “But you said I had permission to have a good time!”

Why grant specific powers if there is a grant of “general” power?

The Founders put a lot of time and effort into deciding exactly which powers would be granted to the new federal government.  It makes absolutely no sense to waste all that time on specifics if they were just going to turn around and grant the government the virtually unlimited power to provide for the general welfare.

James Madison made the same point:

“But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared? why, on that supposition, so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?”

James Madison, Nov. 27, 1830

If it is a separate power this clause creates unlimited government power

- Creating a limited federal government was one of the central purposes for writing the Constitution.  But granting the authority to provide for the general welfare would have resulted in a government of unlimited power.

We can now see for ourselves that this is true.  The Supreme Court has decided that this clause does grant the power to provide for the general welfare – because of that most of our public officials believe that the General Welfare Clause justifies anything they want to do.  Can you think of one area of your life that current members of Congress don’t feel is their business?

“If the clause, “to pay the debts and provide for the common defence and general welfare of the United States,” is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and it creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare.  Under such circumstances, the constitution would practically create an unlimited national government.”

Joseph Story, Commentaries on the Constitution

- Can you think of a law that couldn’t be justified under a power to whatever is in the best interests of the country?

“[F]or what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution [...] Can less be said, with the evidence before us furnished by the journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that body whose names were subscribed to the instrument?”

James Madison, Nov. 27, 1830

- If the intent of the Founders was to create a limited federal government, then granting a power to provide for the general welfare wouldn’t have just been a mistake – it would have completely defeated the purpose of writing a Constitution in the first place.  They were far to intelligent to do something nonsensical like this.

As a separate grant of power this clause would be inconsistent with the rest of the Constitution

- The 10th Amendment states that:

“The powers not delegated to the United States by the Constitution [...] are reserved to the States respectively, or to the people.”

If the General Welfare Clause is interpreted the way it is today and means that the federal government has the power to do what’s in the best interests of the country, this amendment makes no sense.  Apparently – based on that interpretation – four years after the Constitution was written the Founders felt the need to pass an amendment to make sure everyone knows that the states have the power to do everything that’s not in the general welfare of the country.  So… the states have the authority to do whatever is bad for the country.  (On second thought, it may explain a lot about California and Illinois…)

- Nowhere else in life do we take one phrase out of over 7,000 words and assume it has a meaning that completely contradicts the rest of the document.  The entire Constitution was written to carefully limit the power and scope of the government.  So it is completely illogical to interpret the General Welfare Clause as granting the authority to do whatever is in the best interests of the country.

“On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative.  It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare.  It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.”

Joseph Story, Commentaries on the Constitution

None of the Founders objected to this clause

- The authority to provide for the general welfare would have been a massive grant of power to the federal government.  Yet somehow, none of the Founders objected to the General Welfare Clause during the Constitutional Convention:

“That the terms in question were not suspected in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence; for it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.”

James Madison, Nov. 27, 1830

- The states – many of which were concerned about being overrun by the power of the new federal government – didn’t object either.  Of all the 189 amendments that were suggested to be a part of the new Bill of Rights, none of them mentioned the General Welfare Clause:

“Here are a majority of the States proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations, restrictions, or prohibitions, without including a single proposition from a single State referring to the terms common defence and general welfare; which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range than all the powers objected to put together; and that the terms should have passed altogether unnoticed by the many eyes which saw the danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the “Articles of Confederation,” by the enumerated powers which followed them.”

James Madison, Nov. 27, 1830

From the Wall Street Journal:

The White House said Thursday it has no plans to reverse course on its decision to require that all employers cover contraception in their insurance plans, despite a wave of criticism from Republicans and Catholic leaders.

After a bruising week for health officials on the issue, the White House arranged a conference call with reporters to address what it called “confusion” over the policy. It also put up a blog post by Cecilia Munoz, director of the House Domestic Policy Council, pointing out that “no individual health care provider will be forced to prescribe contraception” and “no individual will be forced to buy or use contraception.”

And White House press secretary Jay Carney said at Thursday’s afternoon briefing that there was “not a debate” over reversing the decision. “The decision has been made, and it was made after careful consideration,” he said.

So the White House says that its decision on forcing American businesses to cover contraception is final.  That’s cute and all, but it is just one more example of the foolishness of this president and the way his health care law was written.  It also serves as a great illustration of why our federal government’s dependence on executive agencies as a whole is incompatible with effective government.

Despite what President Obama may like to believe, this issue is far from dead.  The contraception requirement isn’t a law that was passed through Congress – it’s just a regulation that came out of the Department of Health and Human Services.

That means that when a Republican president is inaugurated in 2013, he can simply get some new people in place at HHS that will repeal it for him.  Then, the next time a Democrat is elected president, he can reinstate the contraception requirement.  And back and forth forever.  How stable!!  That will definitely help businesses plan for the future.

This instability is one of many reasons that rule-making by executive agency wasn’t provided for in the Constitution.  By creating a fairly deliberate law-making process (along with electing only 1/3 of the Senate every two years), our Founders made it much less likely that one Congress would pass a law only to have the next come along and immediately repeal it.  That type of stability and dependability create exactly the type of environment that is necessary for freedom and economic prosperity to thrive.

So despite the laughable insistence by the White House that this issue has been decided, the debate has only begun.  That is good news for any one who believes that the President has no business dictating what Americans spend their money on.  The bad news is, the threat posed to everyone’s freedom by our government’s crack-like dependence on executive agencies to make laws doesn’t seem to be going away anytime soon.

H/T to Tina Korbe at Hotair.com.

Have you ever had a company sell your contact information to another company and then suddenly you started getting e-mails about some product you’ve never heard of?  It’s annoying isn’t it?

Good news!  The National Labor Relations Board wants to require your employer to share your contact information with unions.  At least when companies pull this stuff they only send you junk mail – imagine what your friendly SEIU organizer might want to do with your information.

Board Chair Mark Pearce is introducing a series of new regulations. One of these regulations, if passed, would require businesses to surrender their employee’s personal contact information to campaigning union heads.

“If the National Labor Relations Board gets its way, companies could be forced to hand over your contact information, whether you like it or not, to union leaders,” Fox host Neil Cavuto said. “Union leaders having access to your phone number, your email address?”

It’s hard to say exactly how this new regulation will help the government do its job of protecting your freedom – and it’s even harder to find the place in the Constitution that authorizes the executive branch to force a business to do something like this.

Unfortunately, it’s become common for nonsense regulations to be proposed and there is virtually nothing that regular Americans can do to stop them.  This is exactly the type of situation that is created when the principles in the Constitution are ignored.  Our Constitution was written in a way that protects citizens from the government.  But when we allow it to be violated, it doesn’t take long before we are faced with this kind of situation where the government wants to subject us to undeserved union harassment and there is nothing we can do about it.

This particular case is a perfect illustration of how the disregard our public officials have for the Constitution poses a serious threat to your freedom.

We all learned in school that our government is split up into three branches – executive, legislative, and judicial (they do still teach that much in public schools at least, right?).  That wasn’t an accident.

There are three jobs that any government has to be able to perform in order to function: it has to be able to make laws, enforce the law, and judge the law.  Without any one of those, a government isn’t able to do its job.  By giving each of those jobs to a different branch, the Founders made sure that no branch could run the government by itself.  So if one branch becomes corrupt, it can’t take the country down a horribly oppressive road without the cooperation of the other two.

Maintaining that separation of powers is critical because any time one branch is allowed to do more than one of those jobs, it becomes much easier for the government to get out of control.  In the Federalist Papers, James Madison explained that any time one person or group of people is able to exercise all three functions of government, that is the very definition of tyranny.

Noah Webster’s 1828 dictionary defines tyranny as:

TYR’ANNY, n.

1. Arbitrary or despotic exercise of power; the exercise of power over subjects and others with a rigor not authorized by law or justice, or not requisite for the purposes of government. Hence tyranny is often synonymous with cruelty and oppression.

2. Cruel government or discipline; as the tyranny of a master.

3. Unresisted and cruel power.

4. Absolute monarchy cruelly administered.

5. Severity; rigor; inclemency.

Maybe it’s just me, but none of those options sound particularly good.

But look at what we’ve done with executive agencies like the NLRB.  In this situation, the NLRB is proposing regulations that would require your employer to share your personal information.  So it is making laws.  A quick visit to the NLRB web site shows that it is also judging laws and enforcing laws.  Now what would Madison call that again?

If you’ve ever wondered why we are getting so many ridiculous regulations in recent years – there’s your answer.  As a nation, we’ve completely disregarded both the Constitution and the protection that is provided by the separation of powers.

In his book The Spirit of Laws, Montesquieu brilliantly laid out the dangers involved in concentrating the powers of government:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” (emphasis mine)

In other words, if all of the power is put in the hands of one group of people and those people come up with destructive or oppressive policies, there is almost nothing that anyone can do to stop them.

Look at it this way: imagine that the NLRB passes a ridiculous, oppressive regulation (a real stretch, I know).  Then, someone from the NLRB does an investigation and finds that you violated that regulation.  You get upset and decide you want to fight the charge so you take your case in front of an administrative law judge from… the NLRB!!

You don’t have to be terribly creative to see how that type of process could be abused.  After all, there’s a reason that the term “judge, jury, and executioner” doesn’t have a positive connotation.

Supporters of this system will argue that it doesn’t violate the separation of powers because Congress still has the power to confirm appointments to executive agencies and oversees their actions.  But even if you buy that really weak argument, President Obama killed half of it when he made his latest (unconstitutional) recess appointments.  Remember – three members of the NLRB that will be considering this proposal to make your information available to unions were appointed earlier this year when Obama sidestepped Congress.

Unfortunately, this idea of Congressional oversight doesn’t offer us any real protection for our freedom either.  Does anyone honestly believe that we have members of Congress – or even their staffs – sitting in Washington, D.C. diligently looking through the regulations that get passed?

Well no one should believe that because it would be physically impossible.  We now have an army of bureaucrats in our government that is pumping out regulations like it’s a factory.  In fact, when the Justice Department did a study to find out how many regulations there are, it concluded that it was impossible to count them all.

To clarify – the federal government says it is impossible to count all of the regulations our government has passed but you are expected to comply with every single one of them.  So you could easily find yourself in some serious trouble for violating a regulation that you never knew existed.  Can you see how having that many regulations is a threat to your freedom?

The cumbersome law-making process that’s created in our Constitution isn’t a flaw that politicians should be trying to get around.  It is a feature that protects your liberty.  By going through deliberate process in order to pass a law, that makes it much easier for regular citizens to keep an eye on what is happening and hold their representatives accountable.

Beyond that, slowing down the law-making process does put some outer limit on the level of intrusion the government can have on your personal life.  If Congress has to actually pass all of their own laws instead of relying on executive agencies, it would be a lot tougher for them to find time to dictate the speed your toilet flushes, the proper height for a stairway railing, or God only knows what other parts of our lives are being regulated now.  (Of course, all of this assumes that our representatives are doing stupid things like reading the bills that they pass before the vote.)

At this point in history, there are certain aspects of government that we know are required to protect freedom and separation of powers is one of them.  Anytime that we violate that principle of separation, there will be consequences.

Right now, the consequences for allowing executive agencies to us all three functions of government could not be clearer.  In addition to a growing mountain of restrictive regulations that no one can even count, we are now facing an NLRB that wants to share our personal information with union bosses and there is basically nothing we can do about it.

If we as citizens have any hope of regaining control of our government – and our liberty – then somehow we are going to have to find a way to put this regulatory genie back in the bottle.

According to the Freedom from Religion Foundation, a militant atheist group from Madison, WI, atheists have a right never to be offended by anything religious… and the rest of us have a right to adjust our lives to ensure that we don’t harm their dainty sensibilities. Sounds fair.

Here is the sequence of events that recently took place involving the FFRF:

• Jessica Ahlquist, a 16 year old student and atheist in Rhode Island, sued her school district over a banner that she found overly religious and offensive. FFRF supported her effort but wasn’t involved in the lawsuit. Earlier this month, District Court Judge Ronald Lagueux ruled in Ms. Ahlquist’s favor that the banner had to be removed.
• The FFRF tried to send Ahlquist flowers to congratulate her on her victory, but three florists refused to take the order. The atheist group is now planning to sue the florists.

These folks are adamant when it comes to their belief in this mythical idea of Freedom from Religion. But when it comes to the florists, somehow they don’t believe in a Freedom from the Freedom from Religion Foundation. Consistent!

This group is such a joke that they are basically a self-parody. The people at FFRF are so singularly focused on their own perceived rights that they have absolutely no respect for the rights of others.

This organization doesn’t see the hypocrisy in backing someone who used the government to ensure that atheists never have to be around anything that offends them, then turning right around and trying to use the government to force religious people to be around something that offends them. The complete disregard that FFRF has for the rights and beliefs of others is stunning.

Here’s the funniest part: despite all the fanatical claims of discrimination, these florists weren’t even refusing to do business with FFRF because they were atheists. They refused the order because FFRF was adding a bunch of insane requests to the order:

The florists, though, disagree with [FFRF Co-President Annie Laurie Gaylor's] stance on the matter. Turnto10.com reports that Raymond Santilli of Flowers by Santilli, one of the companies the FFRF attempted to order from, explains that a foundation representative told him that the person delivering the flowers might need police protection. Additionally, he was apparently told that the person would potentially need identification to enter the home.

“We refused the order because we really don’t want to cross lines,” Santilli said. ”If I send flowers there, somebody may get upset with us and retaliate against us.”

Wow – FFRF told them that accepting the order would require police protection and they refused? I’m shocked!! But yeah, I’m sure it was the atheism that was the problem.

That should tell you all you need to know about the FFRF and what it stands for. They don’t exist for the purpose of defending the rights of atheists. They go around the country looking for any possible situation they can exploit to force their values on other people.

It’s long past time that we start recognizing groups like FFRF for what they are and challenging them at every opportunity. We can no longer back down out of fear of a lawsuit or to avoid being politically incorrect. If we don’t, the values of our entire society will be determined by a very tiny – yet radical – minority.

Earlier this week, several popular web sites either blacked themselves out or displayed messages to protest the Stop Online Piracy Act (SOPA).  Apparently Congress got the message and the bill isn’t going to pass – which is a good thing.  But in the end, it’s not going to mean much because SOPA isn’t really the problem – it’s only a symptom.

The real problem is arrogant politicians who believe that this kind of blatant, big government power grab is good policy.  Don’t be fooled into thinking that Congress actually listened to our protests and is giving up on this bill.   SOPA will have a come back faster than Newt Gingrich attacking a debate moderator.  Next time, its supporters will just give it a different name and quietly slip it into another bill that’s guaranteed to pass.

Unfortunately, most members of Congress don’t truly care about the will of the people – they are going to do what they want regardless.  Remember 2009 when tens of thousands of people were in the street protesting the health care bill?  And no matter how many rules had to be ignored, they rammed that thing through anyway.  More recently the American people have made it crystal clear that we want the government to cut spending.  How’s that working out for us?

Sure, SOPA got defeated this week.  But if we pat ourselves on the back for the victory and think this issue is dead, Congress will pass something ten times worse as soon as we’re not looking.

Those of us who believe in liberty and limited government have to create an atmosphere in Washington D.C. that makes it very clear to every member of Congress that vaguely written bills like SOPA – which any fool can see is open to abuse – won’t be tolerated by the American people.  That means educating the public on our ideas at every opportunity and remaining active in the political process.

The Federalist Papers remind us that we the people are the final check on the power of government.  Our politicians need to know that we are constantly watching them.  They need to know that if they try to attach SOPA to another bill, we will notice and we will hold them accountable at the ballot box and shame them in the media.  The only way to actually solve this problem is to eradicate the mindset in Congress that produced SOPA in the first place.

But as it stands today, our politicians are completely out of control.  They repeatedly try to enact policies that they already know the American people don’t support – say killing puppies – by putting them in bills that have fluffy, sweet sounding names like the Happiness Act.  Then, when informed citizens speak out against killing puppies, members of Congress go on tv and say, “Why don’t they support the Happiness Act?  Are they against happiness?!?” This strategy is completely disingenuous and clearly aimed at manipulating a public that they don’t think is paying attention.

And so it is with SOPA.  When we come out and oppose the idea that this bill would allow the government to shut down our web sites on little more than an accusation, its supporters say,  ”What?  You oppose the Stop Online Piracy Act?  Why do you support piracy?”  We don’t support piracy and we are all for protecting property rights.  What we oppose is tyranny.

Bills like SOPA and the National Defense Authorization Act (NDAA) which are obscenely vague and weaken the protection that citizens have against out of control government are becoming more and more common in recent years.  The NDAA allows the government to detain someone indefinitely simply on the suspicion that they might be a terrorist and with SOPA a web site can be shut down without a trial.  Remember those backward days of ideas like innocent until proven guilty, trial by jury, and being able to face your accuser?  Good times.

So why are these types of bills becoming more common now?  In the Federalist Papers, one theme that’s impossible to miss is the importance of understanding that human nature is flawed.  Everyone is born with certain instincts – for example young children don’t have to be taught to lie or to hit, it’s part of their nature.  We need to understand that nature if we are going to create a government that can remain limited and protect our freedom.

SOPA and NDAA are obviously situations where self-interest is playing a role.  It is human nature to be self-interested – or to take care of yourself before you take care of others.  That’s why it is so critical that we have a citizen government where the politicians have to live under every law they pass.  Since no sane person would ever vote to take away his own freedom – if  members of Congress always had to apply the law to themselves, they could never take away our freedoms without taking away their own.

But over time a political class has developed in this country where people go to Washington D.C. and end up staying for decades.  Add that to the fact that we’ve allowed Congress to set up an entirely different set of rules for themselves than for the average citizen and the stage is set for the dysfunctional, destructive government we’re seeing today.

Look at it this way – do you think members of Congress are losing sleep at night worrying about Social Security?  No way.  What about unemployment?  Nope.  They’ve got lucrative Congressional pensions that will take great care of them.  Is Congress really worried about health care?  Not really.  They have high quality government insurance to rely on.  They aren’t personally interested in any of those issues.

Of course any member of Congress will give you a line about how much he wants to solve all of those problems.  But don’t doubt for a second that all three of these issues would suddenly become emergencies if our politicians thought they were going to be the ones feeling the effect of a broken Social Security system.  Or if they were the ones who would be unemployed.  Or the ones getting the third rate health care that regular folks will get with Obamacare.

SOPA and NDAA are no different.  The politicians who support those bills are able to toss aside our concerns about the potential for abuse because they know they will never be personally affected by it.  Members of Congress know that even if we are right about NDAA they will never be detained indefinitely; and their web sites will never be the ones that are shut down under SOPA.

So if they can grab more power for themselves but it ends up costing you a little freedom, well, then that’s the way it has to be.

The defeat of SOPA is an important – but still very small victory.  We must remain vigilant in combatting the mindset that believes that government is the solution to our problems and constantly consider the effects of human nature on everything our government does or thinks of doing.  If we don’t learn those lessons, then defeating SOPA will be nothing more than a speed bump on the road to destroying our freedom.

James O’Keefe’s latest video – in which several election officials in New Hampshire handed out ballots for dead people – has a lot of people talking about the issue of requiring photo ID at polling places.  But for me, it immediately brings up a different question.

Why should it be illegal to videotape public officials?

When some local politicians in New Hampshire found out that election officials had been handing out ballots for voters who were already dead, they were outraged… with O’Keefe!

For example, look at the reaction of Nashua City Clerk Paul Bergeron:

“They recorded it without election officials’ knowledge, which apears to be a violation of our New Hampshire wiretapping codes, and some of these are out of state residents, so I don’t know if violations of wiretapping or ID theft could hold up in court, but if they crossed state lines to commit these crimes, it may be a federal crime as well. This is serious; we won’t tolerate voter fraud, regardless of what the intent might be,” Bergeron said.

“If these are New Hampshire residents they should lose their right to vote forever, in addition to fines or imprisonment. I take it seriously, and people shouldn’t dismiss this as just a harmless stunt; it’s not,” Bergeron said.

Wow – this guy takes fraud really seriously!  Any time fraud happens he’s pounding his desk demanding that something be done about it.  Except that, I haven’t been able to find one quote from him expressing even the slightest concern about how easy it was for someone to walk into a polling place and get a fraudulent ballot.

If that seems inconsistent, it is.  And a quick look at the Nashua web site will tell you exactly why Bergeron is furious about the undercover video that was taken… but reluctant to talk about how vulnerable this election was to fraud:

[The City Clerk’s Office] conducts all local, state and national elections…

So Bergeron isn’t really angry that someone allegedly broke a random law about videotaping public officials.  He’s angry because someone is spotlighting the fact that he didn’t do enough to ensure the integrity of this election.

Now that his ineffectiveness is getting publicity, rather than take responsibility, Bergeron is attacking James O’Keefe – plain and simple.

Another politician who’s outraged and demanding that O’Keefe and his associates be “prosecuted to the full extent of the law” is New Hampshire Governor John Lynch.  Why?  Last year he vetoed a bill that would have required a person to show photo ID in order to vote.  In hindsight, maybe Lynch is realizing that that wasn’t the best decision.

In reality, neither of these guys are genuinely outraged by this voter fraud.  Their reaction can be explained with three letters: C-Y-A.  That’s all it is.  They are angry that someone is drawing attention to their ineptitude so they are lashing out at the person doing it.

This perfectly demonstrates why we as citizens need to be legally able to videotape our public officials.  Unfortunately, this type of reaction is common when someone in a position of authority is challenged because people in power will often do whatever they need to do to hold on to that power.

Our elected officials have a lot more resources at their disposal than the average citizen and can even use their position in government to retaliate against anyone who exposes their shortcomings. Because of the enormous power that comes simply from being in government, we as citizens need to have the most powerful defense available to us – video tape.

But this is about much more than just defending ourselves from being persecuted by out of control politicians.  Video is also by far the most effective way for individuals to create change in the policies of government.  In fact, O’Keefe’s video has already prompted an investigation.

As New Hampshire’s unfortunately named Assistant Attorney General explained:

According to the Union Leader, state Associate Attorney General Richard Head said his office became aware of the effort on Election Day and began investigating immediately.

“That investigation is ongoing,” he said. “Based on the information received on Election Day and the information on the video, we are undertaking a comprehensive review of voting procedures with the Secretary of State.”

Now do you think O’Keefe would have gotten an immediate reaction like that if he had obtained ballots for dead people and then written an article about it?

What if he had interviewed election officials and written about that?

How about if he had written a letter to the Attorney General?

Of course not.  If he had used any or even all of those methods there is no way that Richard Head would already be reviewing the voting procedures.  That is the power of video.

It all comes down to the balance of power between the people and the government – and right now the scales are tipped way too far in favor of the government.  Because of that, videotaping public officials is a tool that we must have at our disposal if we are going have any chance of properly holding our government accountable.

“Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”

James Madison

According to the Wall Street Journal, the Justice Department’s Office of Legal Council believes that President Obama’s “recess” appointments last week were legal:

The Justice Department’s Office of Legal Counsel issued a Jan. 6  opinion at the request of the White House, saying that despite so-called pro-forma sessions of the Senate, some as brief as a few seconds, the Senate meetings do not constitute legitimate sessions that would preclude presidential recess appointments.

“Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner” that would prevent recess appointments, the OLC opinion said.  “Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period.”

Notice that this defense only addresses the question of whether or not the Senate was in session when the appointments were made.  The OLC makes no attempt to discuss the crystal clear wording and intent in this part of the Constitution.  As I explained earlier this week, it doesn’t exactly take a Constitutional scholar to interpret this clause:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article 2, Section 2

Obviously, whether the Senate was in session last week or not is irrelevant.  These vacancies didn’t occur while the Senate was is recess so the president has absolutely no power of recess appointment in this situation.  That fact isn’t even up for debate.

This is why we as citizens must always pay close attention to everything the government is doing.  Anytime that politicians aren’t being held accountable, they will distort the language of the Constitution and the law in new ways to grant themselves more power.

Every president as far back as I can remember has chosen to simply ignore the part of the Recess Appointments Clause that limits his power to vacancies that occur during recess.  It might seem minor on its own but this reinterpretation of the Constitution gives the president just a little more power and weakens the separation of powers.  And we are allowing it to happen.

In how many other ways are public officials in all three branches finding subtle ways to grab a little bit more power without grabbing your attention?  All it takes is a little power here and there.  First through these unconstitutional recess appointments.  And then a little more through the NDAA.  And then a little more through SOPA.  Before you know it, most of the power that we have as individuals to protect ourselves from the government is gone.

The natural tendency for government is to grow and grab more power unless we as citizens are informed and actively engaged in defending our freedom.  No one else is going to defend it for us.  In fact, politicians actually have a whole lot to gain personally in both power and money from taking our freedom and selling it to special interest groups so we always have to be vigilant.

Little bits of power add up much faster than most of us can imagine.  Some people have a hard time getting outraged over the president overreaching on these recess appointments because it’s hard for them to imagine the United States becoming openly oppressive.  I can understand that.  But if we wait to start passionately fighting to defend our freedom until we can see tyranny on the horizon, it will be way too late.

Since the moment President Obama announced his appointments to the Consumer Financial Protection Board and the National Labor Relations Board, there has been an ongoing debate over whether or not the Senate was in recess when these appointments were made.  The whole spectacle has been really interesting – but it’s basically irrelevant in this situation.

A better question to be asking at this point is – doesn’t it seem odd that the Founders would require the President to get his appointments confirmed by the Senate… and then let him just do whatever he wants through recess appointments?  Why would they do something that seems so illogical.

The short answer: they didn’t.

If a vacancy in the executive branch opens up while the Senate is in recess, then the president has the power to appoint someone to serve temporarily.  But unless a vacancy actually occurs while the Senate is out of session, the president has absolutely no power of recess appointment.

Don’t believe it?  The Constitution is pretty clear on the topic:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article 2, Section 2

That clause couldn’t any more straightforward.  But in case there is still any doubt, Alexander Hamilton explained the purpose of this clause in Federalist #67 as well:

The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” (emphasis in original)

The fact that the three appointments the president made to the NLRB are unconstitutional is not up for debate.  But Obama did make a weak attempt to argue that his appointment of Richard Corday to the CFPB is different because it’s a new agency and it can’t function without a director.

Unfortunately for the president, he’s dead wrong on that point as well:

“It has been held by that venerable body [the Senate], that if new offices are created by Congress, the president cannot, after the adjournment of the senate, make appointments to fill them.  The vacancies do not happen during the recess of the senate.” (emphasis in original text)

William Rawle, A View of the Constitution of the United States 1825

And:

By “vacancies” they understood to be meant vacancies occurring from death, resignation, promotion, or removal.  The word “happen” had relation to some causality, not provided for by law.  If the senate are in session, when offices are created by law, which as of yet have not been filled, and nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancies did not happen during the recess of the senate.

Joseph Story, Commentaries on the Constitution 1833

So the purpose of recess appointments was in no way intended to give the president a way to get around Senate decisions that he doesn’t like (shocker!) – it was to ensure that the government can continue to function if something unexpected happens in the executive branch while the Senate is out of town.  Now that makes a lot more sense!

Considering that President Obama is supposed to be a Constitutional scholar, you’d think he’d already know something basic like that.  I guess an education from Columbia and Harvard isn’t all it’s cracked up to be.

If it was, he should already know that the system for confirming appointments wasn’t created by accident.  It has an essential purpose – to limit the power of the president.  More specifically, it was designed to limit the power of presidents who say things like this:

“I refuse to take ‘no’ for an answer,” Mr. Obama said in Shaker Heights, drawing applause from his audience. “When Congress refuses to act and as a result hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them.”

This kind of mindset is exactly why the system of checks and balances in the Constitution is so critical to protecting our freedom.  He is determined to appoint political cronies to certain executive agencies regardless of their qualifications (or lack thereof).  We can only imagine what he’d be doing if he wasn’t being restricted by that darned Constitution thingy.

When the Founders required Senate approval for those nominations, they were trying to force the president to nominate high quality candidates and to prevent him from using appointments as political favors, among other things.  So, for example, if the president started passing out appointments to reward political donors the Senate has the power to stop him from doing that.

But if the president has the power to just install anyone he wants during a recess every time the Senate rejects his nominee, the whole system of checks and balances falls apart.  At a time when the president has actually come out and announced that it is his intention to ignore the separation of powers and grab as much power as possible, the system of checks and balances is more important than ever… and our liberty is in serious danger.

This is where the hyper-partisan crowd starts screaming, “But, but, but Bush did the same thing when he made John Bolton a recess appointment!!”  Yep.  And it was unconstitutional when Bush did it too.  The fact that Bush violated the Constitution isn’t an appropriate reason for Obama to double down on the illegality.

If we accepted the logic of the folks who argue that these appointments are acceptable because there’s a precedent, that would mean that Obama would be justified in rounding up all the Japanese people in the country and putting them in internment camps… just because FDR did it once.  Obviously, that would be absurd.

As a nation we need to be asking ourselves if the Constitution actually means something or if we’d rather be governed entirely by precedents that are usually set by politicians who are trying to enlarge their own power.

The Constitution was carefully designed to protect your freedom – while relying solely on precedent provides no limit on the amount of power the government can have over your life.  We ought to be careful in choosing which one we want to govern us because once we go down the road to tyranny there’s no turning back.

What happened to our healthy distrust of government?

The most basic principle of liberty is that it is impossible to create or maintain a government that protects freedom without understanding human nature.  Despite that, the political class in this country wants us to completely ignore everything we know about the flaws of human nature when it comes to the National Defense Authorization Act (NDAA) and the Stop Online Piracy Act (SOPA).

For example, it’s in our nature to take advantage of each other and do bad things.  Think of how toddlers play – they don’t have to be taught to steal.  It’s just natural for them to go over to other children and take what they want.  They have to be taught not to steal.

Most of us learn to control those kinds of instincts, but not all of us do.  Because of that, if you give the government an opportunity to grab more power, sooner or later it is going to do it.  To protect against these flaws in human nature, we must write our laws with the assumption that the government is run by bad people who will try to abuse those laws.  That way, when someone comes along who does have bad intentions there are already safeguards in place.

Despite all of this, those in the political establishment have chosen to label anyone who raises a concern over NDAA or SOPA as paranoid conspiracy theorists.  It’s as if they are so preoccupied with sounding “rational” that they’ve lost all common sense.

Side note: Who is the political class or political establishment?  It’s the group of people who arrogantly argue for the status quo as the only reasonable option.  The mainstream media and leadership of both political parties are made up almost entirely of establishment types.

Identifying people with this mindset is simple.  It’s like the old theory on the crazy people in your family.  Everyone has at least one crazy person in their family.  You’re thinking of them right now… and if no one immediately comes to mind, look in the mirror.

If you read my mention of the political establishment, chuckled smugly and said, “What political establishment?”, well…

Is it really that hard to imagine – given all that we’ve seen throughout our history – a crisis happening that allows politicians to point to NDAA to say, “Gosh, we really don’t want to detain American citizens… but we have to for security purposes.”  Never let a good crisis go to waste, right?

Or with SOPA, access to a web site can be blocked simply on the accusation that it is enabling copyright infringement.  Not after it has been proven.  Or after the owner of the site has the opportunity to face his accuser.  The site can be blocked simply based on an accusation.

Is it that hard to imagine that a politician who is dealing with a particularly critical web site during campaign season might find a way to “accuse” that site of enabling copyright infringement in order to get it blocked?

Are these scenarios likely?  No.  But they are certainly plausible.  And that‘s enough to prove that these bills need to be rewritten.

Can there really any question that there are politicians will take every opportunity we give them to abuse their powers at a time when the president is desperately trying to bastardize the term “recess” in an attempt to get around the separation of powers?

This is the same president who recently announced that he was scouring through law books looking for every opportunity he has to circumvent Congress and do what he wants.  So it’s not “paranoid” or “conspiratorial” to believe that politicians will look for loopholes or poorly worded laws that they can exploit for their own benefit.

These two incidents of presidential over-reach ought to serve glaring examples of exactly why we need to be cautious about any power that is granted to government.

Our self-proclaimed intellectual betters in the political class seemed to have forgotten two very important lessons:

1. Politicians who intend to take away your freedom rarely come out and announce it beforehand.  If they did, they would run into a lot of resistance – which would make it tougher for them to achieve their goal.  That’s why they tend to disguise oppressive measures in laws that seem benign on the surface.

Sure, proponents of these bills might claim that they address very worthwhile problems, but that doesn’t mean we shouldn’t be suspicious of them.  It’s always wise to question what the government is doing – especially when it is being given more power.

2. Dangerous legislation is often passed by politicians who have the best of intentions.  Today’s members of Congress may be 100% sincere in their belief that the NDAA and SOPA will be good for the country.  But the fact that this group of politicians plans to use them honorably doesn’t stop the next administration – or the one after that – from exploiting the sloppy way in which these bills were written.

It is for these reasons that – during the Virginia Ratifying Convention in 1788 – William Grayson warned us that:

“Power ought to have such checks and limitations as to prevent bad men from abusing it.  It ought to be granted on the supposition that men will be bad; for it may eventually be so.”

Unfortunately, NDAA and SOPA have been written with the completely opposite mindset.  They seem to assume that politicians will always be good and never try to take advantage of the openings these bills provide for oppressive, political enforcement.

The need to understand human nature didn’t end when the Constitution was finished.  We need to keep it at the front of our minds as we create legislation today as well.  It’s only when we understand the flaws of human nature that we are able to create laws that will protect our freedom in the long run.

Granted, writing laws that take human nature into account and aren’t open to abuse takes a lot of time and effort.  But maybe members of Congress could find the time to do that if they focused on crafting a few good laws each session instead of trying to ram as many 2,000 page monstrosities down our throat as possible.

As it stands, NDAA and SOPA are sloppily written and leave open the possibility for abuse.  In a situation where the penalty for sloppiness is the potential destruction of our freedom, I expect a whole heck of a lot more clarity that what we’ve gotten with these bills.  If the political establishment wants to interpret that concern over the flippant attitude Congress has take toward our liberty, well, that explains a lot about why our country is in the shape it is right now.

“[T]o bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.  But confinement of the person by secretly hurrying him to [jail], where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary force.”

William Blackstone, Commentaries on the Laws of England

After reading up on the disaster that is the National Defense Authorization Act (NDAA) that was recently passed by Congress, I could make a laundry list of the problems with it.  There are so many major problems that I was having trouble coming up with an easy way of presenting them all.  Then it dawned on me – why not create an actual list!  (brilliant, I know)

Before I get to the list, let’s start with a little background.  The NDAA is controversial because its original text had a provision that might… well… destroy our due process rights a little.  That’s kind of a big deal because due process is what protects American citizens from arbitrary imprisonment, politicians using the courts to retaliate against opponents, and all kinds of other things that oppressive, out-of-control governments might do.

In a nutshell, the right to due process guarantees that anytime the government is going to strip you of any portion of your life, your liberty, or your property it has to go through a fair process that justifies why that is an appropriate action and allows you an opportunity to defend yourself.  If the NDAA is signed by President Obama – depending on which lawyer you talk to – it might allow him to use the military to indefinitely detain anyone he suspects of being a terrorist.  Without charging them with a crime.  Without giving them a trial.

If that sounds a little medieval to you, that’s because it is.  And here’s a short list of reasons that the NDAA and the process surrounding it pose a serious danger to our freedom:

1. There should be no ambiguity about violating our rights -

“[T]he glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful.”

William Blackstone, Commentaries on the Laws of England

There is still a lot of debate over whether this bill strips Americans of their due process rights.  Some members of Congress insist that they amended the language to make sure that American citizens can’t be detained.  But some lawyers still aren’t convinced that final bill is any better.

The fact that there is any confusion at all is completely unacceptable.  When the issue being discussed involves the possibility of destroying the rights of American citizens, no member of Congress should settle for anything less than absolutely unmistakeable clarity that our rights are to be protected without exception.

In this case, not only are our Congressmen accepting the ambiguity, they seem to be creating it intentionally.  When discussing the effect the new amended language would have on the possibility of the NDAA allowing the indefinite detention of Americans, Senator Dianne Feinstein said:

“this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.”

In other words, Congress isn’t going to actually do anything proactive to protect our rights.  They are just going to do what they have to do so that they can get home for Christmas on time and leave all that freedom stuff for the courts to figure out.

We’ve got some real staunch defenders of liberty in Washington D.C. today, don’t we?  Apparently this group of politicians is so cowardly that they can’t even bring themselves to take a stand on whether American citizens should have due process rights.  Unbelievable.

2. It takes more than a law to change the Constitution -

It’s extremely frightening that so many members of Congress would take a chance when it comes to protecting our due process rights.  But even more troubling for me is the fact that so many Congressmen believe – and the public is willing to accept – the idea that the Constitution can be over-ridden by just passing a law.

That’s the whole point of having a Constitution – to keep the government from just doing whatever the heck it wants.  The Constitution is the voice of the people declaring exactly what powers the government has permission to use.  A law is basically the voice of the government.  In other words, the people created this government – we are the parent and it is the child.

But if Congress can pass a law that takes precedent over the Constitution, that means the voice of the government is more important than the voice of the people in this country.  That is a situation that would absolutely destroy the idea of limited government and take our freedom with it.

If members of Congress truly feel the need to violate the due process of some Americans, the people of this country gave them a process for amending the Constitution (see: Article 5).  If our Congressmen aren’t willing to go through the amendment process, then they need to remember who is in charge in this country and live by the rules we have laid out for them.

3. Laws that probably won’t be abused aren’t good enough -

Most people seem to believe that the Congressmen who voted for the NDAA had honorable intentions and have a hard time imagining that our government would actually start imprisoning people at random.  Because of that, they have a hard time getting too riled up over this bill.

Do I honestly believe that Barak Obama is going to start rounding people up next year and sending them to Guantanamo Bay?  No I don’t.  Then again, I never thought our government would try to run a car company or force me to buy health insurance either.  Sometimes people surprise you.

And that’s the point.  We have no way of knowing who will be running our government in 10, 15, or 20 years.  So passing laws based on what we think our current politicians would do or because we trust a sitting president is extremely dangerous.  We need to pass laws while also considering the flaws of human nature.

William Grayson explained this concept perfectly when the Constitution was being debated in the Virginia Ratifying Convention:

“Power ought to have such checks and limitations as to prevent bad men from abusing it.  It ought to be granted on the supposition that men will be bad; for it may eventually be so.”

So whenever we grant power to the government, we should limit that power as if we thought the people in office were going to try to abuse it.  There will be a lot of people who hold office over the years and eventually we are bound to elect a crook.  When that bad person takes office, if there aren’t proper checks on his power he is going to use it to destroy our freedom.

When you look at it that way, somehow it doesn’t seem like such a good idea to give the president unchecked power to put American citizens in prison without a trial.

During a speech to the House of Representatives in 1807, Representative William Armisted Burwell perfectly demonstrated the mindset our modern representatives should have taken when approached with the idea of indefinitely imprisoning American citizens.  In this case, Burwell is discussing a proposal to suspend habeas corpus, but his arguments would have been just as relevant had he made them in the House earlier this month about the NDAA:

“What, in another point of light, would be the effect of passing such a law?  Would it not establish a dangerous precedent?  A corrupt and vicious Administration, under the sanction and example of this law, might harass and destroy the best men of the country.  It would only be necessary to excite artificial commotions, circulate exaggerated rumors of danger, and then follows the repetition of this law, by which every obnoxious person, however honest he may be, is surrendered to the vindictive resentment of the Government.  It will not be a sufficient answer, that this power will not be abused by the President of the United States.  [I don’t believe President Jefferson would] abuse it, but it would be impossible to restrain all those who are under him.  Besides, [I] would not consent to advocate a principle, bad, in itself, because it will not, probably be abused.”

In other words, it’s never ok for a Congressman to vote for flawed legislation because he’s pretty sure that it probably won’t be abused.  That is an incredibly careless approach to take to a situation that could lead to the violation of someone’s right to liberty.

Think about it, would you feel comfortable walking up to a random person at the mall and handing him the keys to your house along with directions on how to get there?  Of course not.  Sure, chances are that this person isn’t a crook and won’t use the keys to rob your home, but it’s disconcerting just to know that he even has that opportunity.

If it’s that uncomfortable to think about another person being able to take our possessions, why are so many Americans cool with giving the president the opportunity to take away our freedom?

This is why so many of us are furious over the current NDAA.  Remember, we aren’t only giving this power to Barak Obama.  We are also setting a dangerous example for every president that comes after him.  It comes down to common sense – if you go to the mall enough times and give your keys to enough strangers eventually you’re going to come across a crook.  The same is true in government – if you give enough politicians an opportunity to destroy your freedom eventually you’re going to elect one who will actually do it.

Members of Congress need to lose the cavalier attitude and start writing laws in a way that limits the possibility of abuse as much as humanly possible.  It’s unacceptable for them to even allow the opportunity for this section of the NDAA to be misinterpreted in a way that poses a danger to our due process rights.

4. Issues affecting our rights should be debated publicly -

If you decided to do something that you knew was wrong, where would you do it?  Probably somewhere private, where no one could see you, right?

That’s why it is very telling that some members of Congress chose to slip this section on indefinite detention into a bill that they thought would pass without much scrutiny.  They are trying to hide something they know is wrong.  After all, if they were proud of this provision and honestly thought that the American people would support it, why not publicize it or even make it a separate bill so everyone can see what a great job they’re doing?

But even a week after it’s passage, a Yahoo search brings up virtually no mainstream media coverage of the controversy surrounding the NDAA so clearly our politicians are making no attempt to inform the American people about it.  This is just one more glaring example of the fact that many members of Congress believe that they are part of a political aristocracy that knows better than the rest of us unwashed masses.

Unfortunately for them, our government was created to serve the people – not the other way around.  Let’s not forget that the people of this country are the source of all the government’s power.  So any time legislation is being considered that could possibly have an effect on our rights or how they are interpreted, Congress has an obligation to have an open and extremely public debate that involves getting feedback from the public.

Nearly everything about the way this bill was handled is shady and endangers our freedom.  As it stands today, Congress passed a law:

1. that may or may not strip Americans of their due process rights (no one knows for sure),
2. that absolutely violates the Constitution, and
3. that might give the President unimaginable power to destroy the liberty of every American citizen (but they’re pretty sure it probably won’t be abused).

No wonder no one in Congress wanted us to know about this.