Simple truths

Doc Zero is joining a little discussion about exactly how much time ought to be spent going over first principles when it comes to political discussions.

It's a good question because lately the debate has all been about the individual issues facing the country now: this or that bill or foriegn policy choice.  It's not unimportant, but I think that those debates are ultimately lost regardless of the outcome if we accept those as the thing to be discussing; it would mean that the assumptions leading up to those debates are already settled, and increasingly, settled against the liberty of the people.  Debating the size of some bailout assumes that the bailout is needed and valid; debating "health care reform" assumes that government has authority over health care in the first place.  We have to start earlier.

I always try to remind myself that the Constitution is remarkable for its simplicity and elegance. It was not a document written by intellectuals as an abstraction, just to prove a point or propose a theorem. The Founders wrote a library's worth of those sorts of documents - letters to and fro, arguing this or that point, and public essays, and outlines in their journals. Eventually they published the Federalist Papers and other documents to present those refined ideas to the general public. But when it came down to the actual construction of the government, they took all that theory and argument and burned it down to a plain and sparse document.

In some ways the Constitution is like the tip of an iceberg. The part above the water is the actual charter that governs our public affairs; the Federalist Papers and such are the part below that support it. It's good to know that part and it gives insight and understanding - but it is IN NO WAY REQUIRED to be a good citizen. The Constitution as written is enough. And here's the thing: it was always meant to be enough. These remarkable, towering giants who codified our freedoms did not write a Constitution as an exercise, or to prove their cleverness; they weren't writing for an audience of "scholars" and "Constitutional lawyers" and other experts. They wrote a plain document, meant to be easily understood, so that every citizen could know his rights and the limits of the authority the government could exercise over him. The simplest farmer or struggling merchant could know in five minutes what his government was and was not permitted to do, and where he stood in relation to it - and that standing was equal before the law with any other citizen, regardless of social standing, buying power, education, or rival creed.

Now, a certain amount of smaller laws naturally build upon this foundation.  Some of it is necessary; some of it is of debatable use.  But there are two things that are certain to be disastrous - first is to actually chop away at the foundation: to melt the iceberg bit by bit, right by right.  Second is to build so much upon it that it submerges entirely.  Either way, when it goes under all the construction goes with it, and we are all alike headed for the bottom.

That's why I don't trust "Constitutional scholars" when they tell me that the Congress has authority to do all sorts of enormous, intrusive (and costly) things based on the "commerce clause" or a "penumbra" or some case law precedent.  I rather trust what the document says, and it says very clearly that the Congress can do a certain number of limited things.  The writers didn't merely write a commerce clause, they spelled out the 18 specific things that Congress was permitted to do: Article I, Section 8. 

The first of these 18 things says, in part, "...to pay the Debts and provide for the common Defence and general Welfare of the United States..." and that would seem to cover a lot more than just the rigid list.  This seeming is really a mirage.  Our Congress is dazzled by the lights coming off the iceberg, but what they think they see is not there.

First, they often neglect the common Defence and they certainly neglect paying the Debts; why then should they be trusted by what they say is our "general Welfare"?

Second, the general welfare of the country as a whole is NOT necessarily the individual welfare of the many citizens who live there.  There are 435 Representatives, 100 Senators, one President, and 9 Supreme Court Justices - 545 people.  Managing the affairs of the country as a whole - its foreign policy, its roads and mail and armed forces, its public debts, and its citizenship and immigration law - is enough of a job for them.  Managing the affairs of over 300 million individuals is preposterous.  There is no possible way it can be done, unless the numbers of such people are multiplied to an intolerable burden.

Third, the Constitution says that we the people establish it; it is not the government's statement to us of how they will operate, but ours to them.  It was not written just to promote the general Welfare, either:

establish Justice - equality of treatment and opportunity under the law
ensure domestic Tranquility - peace and safety on the streets; controlling crime and putting down mobs
provide for the common defence - treaties, alliances, fighting and discouraging enemies abroad
secure the Blessings of Liberty - the free exercise of the "inalienable rights" all citizens inherently posess

I've saved "general Welfare" until now because it is the point of dispute.  There are plenty of people who assume this means that the government is ultimately responsible for taking care of us in every respect, and that if when some are not as generally well-off as others, they have the right and obligation to correct it through force of law.  I think that's self-evidently false.  Any government that does that destroys the general Welfare, so it simply can't mean that.

Nor does the Constitution say that.  To quote the great saint Thomas More in A Man For All Seasons, "It will mean what the words say."  And the Constitution spends a lot of time spelling out exactly which things Congress and the rest of the Government are permitted to do.  It's plain that those things are what is meant by promoting the general welfare of the United States.  That's why that list of 18 items in Article I, Section 8 STARTS with "general welfare."  It's not meant as a catch-all for "whatever Congress damn well pleases, and shut up, that's why."  It's an idea that is then defined throughout the rest of the document: to promote the general welfare, Congress is permitted to do these certain and specific things; the President is permitted to do these things; the Courts will do this and this but NOT those, etc. etc.

The last of the list of 18 items is to make any necessary laws for executing the powers of the government as granted by the Constitution.  The highlighted phrase, again, reinforces this basic notion of a government restrained by law, subject to limits that it cannot ignore or alter at whim.

Then come the Amendments, and they are the clincher, especially numbers nine and ten:

9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It's as clear as the words they wrote - the government's powers are strictly defined by the Constitution, but NOT the people's rights.  If it's not specified, then the government is not allowed to do it, and the people are - or the individual states they live in.

It's easy to see how that makes sense - a State is easier to change than a country.  If the people think that the government ought to step in to handle something, it's quicker to ask their home state to pass the law.  If it's a bad idea it's then easier to change the law back, and not be overridden by the interests of fifteen other states.  If it's a good idea then the other states are free to adopt it themselves.  And if all else fails, the people who don't like that law can move to another state.  In fact, people do it all the time.

Of course one could always leave America as a whole.  The lefties certainly threatened it enough over the past 25 years, depending on who was sitting in the Oval Office.  But nearly none of them did, and why should they?  They are citizens of a still-great nation.  It would be terrible to be forced from their own country.  It would be equally terrible if that country simply vanished out from underneath all of us.  That's unfortunately what threatens us now.  The government has long since stopped actually reading the Constitution and instead prefers to do whatever it pleases.  It so happens that a lot of it pleases a significant number of the people as well - but according to the Constitution, that doesn't matter.  Even a popular law can be unconstitutional and thus invalid.  Therein is a large part of our safety: it's easy to ride some popular opinion at the moment, but the law is a lasting thing and it can endure long after the people have wearied of its burden, because the few who profit from it defend it to the bitter end.

Thomas More:  He should go free, were he the devil himself, until he broke the law.
Roeper:  So you would give even the devil benefit of law?
More:  I would.
Roeper:  I would cut down every law in England to get the devil!
More:  Oh?  And when the devil turned round upon you, where would you hide once the law's gone flat?  I give the devil the benefit of law - for my own safety's sake.

Nobody thinks that things will suddenly turn upon them.  Cromwell didn't, and the very monster he loosed upon More came for him as well.  The Framers of the Constitution knew this.  These government intrustions will intrude upon everyone, including those so gladly endorsing them now.  That's why it's worth remembering the actual Constitution, and what it says, and sticking to it.