http://www.wallbuilders.com/libissuesarticles.asp?id=63What Does The Federal Government Have The Power To Do: Our Constitution is still alive and applicable today! As citizens, we all have a duty to study the Constitution, to understand where our rights and our freedoms are laid out in that document, and how our government structure should work. The reason our government continues to overstep its boundaries is because “we the people” don’t know what those boundaries are! Tune in now for the second part of our three-part series! 

Air Date: 05/07/2019

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

Welcome to all WallBuilders Live with David Barton and Rick Green. Today we are picking up right where we left off yesterday. We’ve been covering Section 4 out of Constitution Alive! with David Barton Rick Green.

And, in that series, we’re covering the entire Constitution: every article, every amendment. This particular section that we’re covering out of Constitution Alive! is about the Congress. Now, you started yesterday, and we’re going to try to get as much covered today as we can

Then, we’ll get the conclusion tomorrow. But, let’s just pick up right where we left off. Here’s Constitution Alive! with David Barton and Rick Green.

Ridiculous, Invasive Questions

RICK:

How many people are in the house? Not How many bathrooms do you have? Do you have trouble taking a shower?

Have you seen the questions that arise? It’s ridiculous. I got on the bad list because I have my own business.

It is a list where they were asking about 100 questions, not the 13-question one that’s already too invasive, but the 100-question one. They want to know the names of my children, how much money I made, how many hours a day I work, all this stuff. I got so frustrated.

I said, “I’m telling you how many people live in my house; that’s it.” And so, this guy was–our census workers are great people. They’re Americans that just want to help get that thing right.

But, this this guy would park outside oF what I call “the family compound.” We’ve got uncles, aunts, and grandpas who all live together on this. We live out the country; and, in Texas, we’ve got a gate at the front and 50 caliber guns–well, not really.

Anyway, this guy would wait outside the gate. When one of my relatives would come through the gate to go to their house,

He’d sneak through the gate and be waiting on my porch to ask me all these questions. I said, “Man, I’ll pay the fine. Whatever the fine is for not answering all those questions, just tell me where to write the check. All I’m gonna tell you is how many people live in my house.”

Article 1

Anyway, I know I probably wasted five minutes since nobody else cares about this. But, this is a pet-peeve issue for me. I really want them to just do what they’re constitutionally supposed to do, not ask all these questions. Just find out how many people live there.

Portion of the members of Congress throughout the states and stop getting so busy in everybody’s business. So, that’s the enumeration right there in Article 1, Section 2, if you ever want to look a little closer into it. But, let’s dive into these very specific powers of Congress.

And, if you go to the end of Article 1, there are three sections there that we can focus on, Sections 8, 9, and 10. The do’s for Congress are in eight; the don’ts for Congress are in nine. Then, it’s the don’ts for the states in 10.

The 10th Amendment

That actually confused me for a little bit when I started looking at it. And, to be honest with you, the 10th Amendment use to confuse me, though I don’t want to admit that.

I’m not a grammar guy, but a math person; so, grammar confused me.

Take a look at the10th Amendment with me just for a second. This language threw me for a loop. And, part of it was very obvious; but, I also think the 10th Amendment is the best place to describe enumerated powers.

If you’ll forgive my examples again, I’m going to go back to the buckets. Look at page 42 in The Constitution in the Original Language and on page 43 in The Constitution Made Easy. These buckets of power that the Constitution sets up, okay?

The Tenth Amendment describes the three buckets. We have one bucket that are the powers that We the People have loaned to the federal government. Now, that bucket, friends, has a lid on.

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David:

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Congress Cannot Add Power to Itself

RICK:

Congress cannot add power to itself; it only comes from us. So, we created power for the federal government and put a lid on it. We put specific enumerated powers in there. And then, the 10th Amendment describes the other two buckets; here’s what they are.

So, first you have your bucket where we’ve loaned power to government. It says, “The powers not delegated to the United States by the Constitution;” so, it’s referring first to those powers delegated to the federal government by the Constitution, “nor prohibited by it to the states are reserved to the states respectfully or to the people.”

So, we have the bucket for the federal government, those prohibited by it to the states, and then those reserved to the people or the States. It’s that middle phrase that confused me. Okay, I know this probably makes perfect sense to everybody else in the country.

But, for me, “nor prohibited by it to the states,” huh? What does “nor prohibited by it to the states” mean? If they had said, “…nor prohibited by the Constitution to the states,” I might have understood. But, here’s where I finally figured it out.

Article 1, Section 10

When I went and looked at Article 1, Section 10: the don’ts for Congress. And, it went “Ding, ding, ding. I get it.”

So, in the 10th Amendment when it talked about things being “prohibited for the states,” that’s what Article 1, Section 10 is: some don’ts for the states, some things that we’re going to take away from the states. And, if you think about it, some of these just make sense. You don’t want the states negotiating treaties with foreign nations, or you get 50 different treaties with four nations; we want only the federal government to do that.

Therefore, there’s a list of things in Article 1, Section 10 that the states are no longer allowed to do. So, we have our bucket of powers given to the federal government; our bucket of powers taken away from the states, “nor prohibited by it to the states,” that’s that bucket. And, that’s of course, things that will be in the bucket for the federal government.

Everything else it says “are reserved to the states respectfully or to the people.” So, if we didn’t give that power to the government through our Constitution or our representatives, if we didn’t take it away from the states, everything else is ours. It is all left to the people and the states.

Congress Has Opened the Lid on Its Own.

And, that means that that lid is supposed to be secure and tight; the only way you open that lid and put a new power in Congress’ bucket is if we amend this document. Article 5 is the only way to do it. That’s why the 18th Amendment opened the lid, put a new power in.

Then later with the 21st, we cracked that lid open pulled some of that back, and closed the lid again. Our problem today is that Congress has opened the lid on its own and is adding all kinds of powers, new departments, and everything else that’s not an Article 1, Section 8. We the People are the ones they’re gonna have to put that lid back on.

I would suggest taking some of those powers back before putting the lid on. But, it’s our job to get them back in there, in their proper place. So, that’s why we’re gonna look at what they’re supposed to be doing.

Article 1, Section 8: 18 Enumerated Powers

Article 1, Section 8: these are the enumerated powers of Congress. If it’s not in here, they’re not supposed to be doing it and it’s unconstitutional for them to be doing it. We have unconstitutional powers being executed by our federal government right now that they were never given the authority in the first place to do it.

We’ve got to reign them in; and, the only way we can do that is if we know what the proper powers are first. So, let’s look in that bucket to see what those powers are. There are 18 enumerated powers the federal government has.

What Does Congress Have the Power to Tax For?

First and right off the bat, as much as I don’t like it, “Congress shall have power to lay and collect taxes.” All right, so they can. And, of course, you’ve got to have the ability to do that.

They can lay and collect taxes, duties, imposts and excises.” Why? “To pay the debts and provide for the common defense and general welfare of the United States.”

And, here’s a fundamental question: What does Congress have the power to tax for or spend money on? This question was debated early by these guys, obviously when they did the Constitution, then even within the first few decades when people tried to start opening that lid and adding some powers for the federal government.

Others that had been part of the debate said, “Whoa, time out. I was there; you’re not supposed to do that unless you amend the Constitution.”

General Welfare

So, let’s take a look at this phrase we already mentioned: “general welfare.” That “general welfare” today means, “I can pass anything in Congress I want because I’m helping the general welfare and providing for the welfare of the people.” And, that tends to be the actions coming out of Washington D.C.

What did these guys say it was supposed to mean? Take a look there on your screen. When you look at the language in Article 1, Section 8, “general welfare” does not just suddenly appear by itself.

There is no individual sentence that says: “Oh, federal Congress does anything that’s for the general welfare of the people.” It’s in the context of this longer phrase it says: “to pay the debts and provide for the common defense and general welfare of the United States.” Interesting to me, when I started reading the debates of what they actually said and did here and their commentaries.

James Madison

Let’s take Madison, for instance. I mean, James Madison is the father the Constitution. If there’s an expert that can tell us what happened in this room, Madison is probably the best guy.

Gouverneur Morris spoke more at the convention; James Wilson spoke the second most: Morris, 173 times; Wilson, 168 times. They were very influential over the document. But, Madison, I think, has earned that that place of being the father the Constitution, the guy that everybody goes to as the expert.

Madison tells us that during all those debates, general welfare wasn’t even discussed until the very end; it was a non-issue. It was in the Articles of Confederation talking about the states, the general welfare the States. And, throughout the convention they ignored it.

In fact, they’d ignored something else throughout the convention, the debts of the Confederacy and how they were going to deal with that. And so, right at the end, in a conversation dealing with the debts and how you pay for the them, the phrase “general welfare” got inserted into this sentence. And, here’s where the conversation was going.

A Proper Tax for the Federal Government

They were saying, “Look; what’s a proper tax for the federal government? What’s a proper thing to spend money on? Well obviously, if you go to war, you’ve got to pay for that war.

And, it’s the job of the nation, the federal government, to protect the system, the “general welfare,” the system, by fighting any foreign enemy. Almost always when you fight a war, you’re going to run up some debt and have to borrow money to fight that war. So, what these guys said was that if you did that and ran up a debt, then as soon as that war was over, you should cut, tighten the belt, do whatever it takes, to pay that debt off.

And so, many of the guys that sat in this room, either for the Constitution or the Declaration, gave us great quotes about the fact that if you carry debt over to the next generation, it’s theft, you’re stealing from the next generation. If you borrow more in your generation than you can pay off, you have stolen from your children and your grandchildren. So, get that stuff paid off.

In the context of that mindset, these guys said, “It’s a proper function of federal government to defend the nation, and have taxes that they can raise the money to pay off those debts that were necessary to defend the nation.” That was the context of this phrase.

Original Intent: Pay the Debts to Protect the General Welfare

I find it quite interesting that they wanted you to be able to raise taxes to pay the debts so that you could protect the general welfare; but, today we run up the taxes and the debt to supposedly take care of the general welfare. We’re really taking care of individual welfare, not general. We’re destroying the general welfare for somebody’s individual welfare by running up the taxes and not even paying the debt. So, we’ve got trillion-dollar debts that are hurting the general welfare instead of doing what these guys did.

Now, here’s the problem. We talked earlier about original intent and phraseology. Even Madison himself talked about the how if you change the phraseology or the meaning of the phraseology to modern times, that would change the Constitution itself. Here’s a better description.

Well, actually, let me give you Hamilton first. “General welfare” means different things to different people today. What we need to know is What did it mean to these guys? because what they meant by it, is the meaning the Constitution today should still have. And, I actually should address this whole idea of the Constitution Alive!

We want to bring the Constitution alive. That doesn’t mean we believe in this “living-breathing document” theory that a lot of people have out there. That’s really the two different views of the Constitution.

Two Different Views of the Constitution

You have guys like Suter on the court, and others, that say, “Oh, it’s a living, breathing document;” which means it needs to change with the times and with the people, “and, I have to change it because I’m on the Supreme Court.” So, if five of the nine justices on the Supreme Court decide to change something in the Constitution, “Well, it’s alive and we can do that.”

No no no. “Constitution Alive!” means that this document is still alive and is still applicable today to our lives. And, if we don’t like what’s in here, we can amend it. I believe that these guys put a document and a system of freedom in place that stands the test of time. And, when it needs to be tweaked we do that through through Article 5.

But anyway, this idea of the Constitution being “alive,” us bringing it to life, is not the same as what some of the left-wing members of the court call “the living Constitution.” And, just an idea for you to break down the court right now, you’ve got four justices that buy into this “living, breathing document, whatever we want it to be we can make it.” And, you’ve got four justices that are strict constructionist, originalist; which is what I believe in, saying, “You judge it based on what these guys said, not what the court today said.”

Then of course, there’s Justice Kennedy in the middle, which means virtually every decision depends upon what Justice Kennedy had for breakfast that day. And, however he feels, that’s what the decision ends up being. He’s the deciding vote almost every time.

Comedy and the Constitution at Front Site

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RICK:

Back to what Hamilton said about general welfare, because we want to judge “general welfare” based on these guys, not what our congressman, the court, some professor, or what I say today. It’s what these guys said that matters. So, here’s what Hamilton said about general welfare.

Hamilton on “General Welfare”

He said, “The welfare of the community of states is the only legitimate end for which money can be raised from the community.” If you go back to the phrase that we were just reading; let’s jump back over there to Article 1, Section 8 on page 12 and 13: “…to pay the debts and provide for the common defense and general welfare of the United States.”

So, he’s saying the only thing that the federal government can raise money for is for a general purpose. Further, he goes on to say that if it’s going to be raised from the community, the only legitimate end for which money can be raised in the community, “Congress can be considered as only under one restriction which does not apply to other governments: they cannot rightfully apply the money they raise to any purpose merely are purely local. The constitutional test of a right application must always be whether it’s for a purpose of general,” meaning this is for the whole system, “or local nature.”

So, if Congress spends money that’s for the whole system, then he’s saying–even Hamilton who later becomes kind of the liberal, if you will, of the Founding Fathers as he tries to expand the power of Congress–that when they raise money, the only proper function would be for a general purpose for everybody, not for a local purpose.

A general purpose would be the interstate system for the nation to allow the free flow of commerce; that you can make an argument for as a general purpose. But, for a bridge to 24 people that costs however many hundreds of millions of dollars that thing cost, obviously, that’s a local nature, and Hamilton would say that it’s not a proper use of this phrase “general welfare.”

Madison on “General Welfare”

Here’s Madison’s description; I love this. It has brought it so into focus for me to understand the difference between “general welfare” the way people define it today and “general welfare” the way the guys that sat in this room, the way they defined it. Here’s Madison.

He said, “Consider for a moment the immeasurable difference between the Constitution limited in its powers…;” now, that’s that’s what they did: the bucket with the lid on it, if you will, “…Constitution limited in its powers to the enumerated objects…or expounded as it would be by the import claim for the phraseology in question.” The letter he’s writing here is in the debate over the question of general welfare.

And, he’s saying that if you define it as the bucket with a lid on it, the way these guys defined it, as: “limited in its powers to the enumerated objects or expounded as it would be,” as they want a “general welfare” to mean, he said, “Man, the difference;” he probably didn’t say “man.” I don’t think that Madison talked like that anyway.

Two Totally Different Constitutions

Anyway, he’s saying, “The difference is equivalent to two Constitutions.” So, we have two totally different things here: “…of characters essentially contrasted with each other, the one possessing powers confined to certain specific areas or cases,” the bucket with a lid on it, “the other extended to all cases whatsoever.” That’s two totally different Constitutions.

And, then he asked the question of whether or not these guys in this room would have ever gone for this “expanded to any cases whatsoever.” Look at how he puts it. He said, “Can less be said than that it is impossible that such a Constitution as the latter,” this expanded to be anything, “would have been recommended to the states by all the members of that body whose names were subscribed to the instrument,” the men that sat in this room in 1787.

He’s saying, “It is impossible that these guys would have signed that Constitution;” and, he would know; he was here and one of them. “Is it credible that such a power would have been unnoticed and unopposed in the Federal Convention?” This is the  Constitutional Convention that took place here.

And then he takes it even further than that. Not only would these guys never have gone for this “expanded government into anything.” Not only were they adamant about the bucket having a lid on it.

He goes back home to the states for the ratification. Listen to this: “In the state conventions, which contended for and proposed restrictive and explanatory amendments;” he’s talking, of course, about the Bill of Rights because those state conventions are where all those ideas emanated from. They debated them, and I talked about all those great debates between Madison, Patrick Henry, and Virginia and all the other debates.

He said that even in those state conventions where they came up with the amendments that would ultimately go into the Constitution, those guys would never dream ‘general welfare’ would mean what people wanted to mean today. And, then he goes on: “In the Congress of 1789;” so, think about the progression here.

“Unlimited…Taxes…Could Never Have Escaped These Public Bodies.”

You’ve got what happened in this room, the Constitutional Convention itself. He said, “Never, no way would those guys have gone for general welfare; they wanted enumerated, limited powers with a lid on the bucket.” Congress–I mean, the state conventions that ratified what happened in here, in all those state conventions, they would’ve never gone for “general welfare” meaning that but wanted the lid on the bucket.

And, then in Congress, the first Congress in 1789, that adopts the ten amendments that came from those states, they would have never gone for “general welfare.” He’s saying in all three cases, “A power to impose unlimited taxes for unlimited purposes could never have escaped those public bodies.” All three of them, this room and the others as well.

“The Constitution Is a Limited One.”

Now, listen to his summation because I think it’s great. He says, “The Constitution is a limited one, possessing no power not actually given.” Even a country boy from Dripping Springs can understand that, “No power not actually given.”

There is no power in the Constitution That is not actually given. So, the bucket–we gave them these powers and put a lid on it. We cannot let them add power to that.

Why? Why did those guys sit in this room and for months debate the smallest–I mean, look. They listed every little thing they wanted the federal–turn the page here and look at that.

“Post offices and post roads,” they even took the time to list that they could build roads. Now, friends, it was the middle the summer in Philadelphia. It was hot, and they had the window shut off, the doors closed, and didn’t want anybody listening to what they were doing.

They were wearing those 15 layers of clothes they were back then; these guys were sweating it out. Let me tell you. And, here they are in that heat, sweating it out, and they’re willing to take the time to list every little thing that Congress could do.

Why would they do that? I’m asking, “Why would they do that?”

Why Suffer in the Heat?

Man:

Limited government.

RICK:

Limited government and a distrust. What’s the rest of that quote say? “Carrying on the face of it a distrust of power.”

These guys didn’t trust power any more than you and I do. They understood the nature of man, the depravity of man, that if you give power to somebody, like Jeremiah 17: 9 says: “The heart is evil; no man can know it.” These guys said that’s why they wanted separation of power because, “The heart is evil; no man can know it.”

So, we don’t want to put too much power in anybody’s hands. And, in fact, we wanted to define very carefully what that power was and put every little thing in writing. Everything in the bucket is in writing right here.

That’s why they did for us, friends.

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RICK:

Enumerated Powers, we’ve lost that concept in America and have got to teach the rising generation to be free. And, the way we do that is we give them the details and show them exactly what the Constitution gave the federal government the power to do. Now, we’re not gonna have time to go through every one of those powers; but, there’s a couple of examples I want to run through here.

Now, “general welfare,” by the way, have you noticed that’s kind of become a loophole? It’s become one so big you can drive a Mack truck through it. I mean, that has become a phrase you hear over and over and over again from members of Congress, that they have the power to do something because of “general welfare.”

Loophole Clauses

Well, you know there’s some other loopholes. What would you guess out of the constitution are some other phrases that have become loopholes for the federal government to get around those limits?

MAN:

Necessary and Proper.

RICK:

Necessary and Proper Clause is exactly right. And, one more, what’s another big one?

MAN:

“Public good.”

RICK:

“Public good,” absolutely. Then, there’s one that they actually used to try to cram health care through with. What’s that one?

MAN:

Interstate trade.

RICK:

Interstate trade, but, we call it the “Commerce Clause.” So, you got Necessary and Proper Clause, “public good,” “general welfare,” the Commerce Clause. I mean, these have become loopholes that they shove anything into instead of sticking with the bucket.

So, the best way for us as citizens to close the loophole is to go back to those words in the Constitution and say, “Well, what did they really mean?”

We already did “general welfare.” What did they mean by the Commerce Clause OR “necessary and proper?” What did those things really mean?

What Does the Federal Government Have the Power to Do?

RICK: (in studio)

All right, friends, we’re out of time for today. You’ve been listening to Constitution Alive! with David Barton and Rick Green. Today was the second in a three-part series.

Tomorrow we’ll get the conclusion. This is that entire program that we did both in Independence Hall, where the constitution was framed, and also in the WallBuilders’ library, pulling those original documents off the shelf, teaching you about what the Founding Fathers originally intended for the Constitution.

And, in this particular series this week, this three-part series, we’re covering “Section Four” out of Constitution Alive!, which has to do with the Congress and those enumerated powers. So, be sure to tune in tomorrow to get the conclusion of this three-part series on Constitution alive! You’ve been listening to WallBuilders Live!