The Founders' Mistake

I've been rereading the Constitution of the United States recently, as it had been several years since I’d done so. I still find the document to be largely a brilliant piece of creativity and innovation, an inspired system designed for the minimizing of the forfeited individual powers to the State. Yet, while I believe it to be divinely inspired, it was still written by the hands of men, and is imperfect. The biggest mistake found in our Constitution is in Article 1, Section 8: the enumeration of powers given to the Congress.

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

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The first notable issue jumps right out at you. The size. Congress was conceded more powers than it merited. Too many concessions were made. As a result, Congress was able to grow its power to unreasonable proportions.

Let’s go through the powers individually, and revise the list as if I were writing the Constitution.

1) 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

I would like this power to be limited. In fact, I would prefer this power to stay in the hand of the people, as it is the people who are the customer of the State’s services. The State may choose to raise its prices, but like any service, the customer may choose not to buy. All tax changes should pass a 60% popular vote before ratification. They did, interestingly, insert a critical note that all taxes “shall be uniform throughout the United States”, but that went out the window with the unconstitutional progressive income tax.

2) To borrow money on the credit of the United States;

This was a bad idea. Obviously. The ability to borrow can and probably should be available to the Congress, but only in very strictly limited cases, such as war (and not for wars we don’t really need to be in… I don’t want Congress declaring wars just so they can borrow money). These cases should be specifically outline, with careful limits even in these cases, as well as defined rules for repayment.

3) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Again, bad idea. Congress should not have power to regulate interstate commerce, nor foreign trade. Regulations such as tariffs and protectionist rules and taxes is bad economics. It hurts the nation as a whole, and helps only a very specific few who quite frankly don’t deserve to be helped at our expense. And the costs far outweigh the benefits. I will have to delve further into why protectionism is bad policy at a future time, but interstate and foreign trade should be open and regulated only by antitrust rules.

4) To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

This is fine, but note the word uniform. Our laws have become far from uniform.

5) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Yes, Congress should be allowed to fix the standard of measures. But I don’t like them holding power to coin money or regulate the value of it or other currencies. Bad idea. By giving them this power, they can (and do) use currency manipulation to their advantage. It may help them, but it always works out badly for the American public, and is potentially disastrous. Rules for coinage and currency regulation should be specifically defined in the Constitution, unchangeable except by 2/3s or 3/4s vote amendment. These rules should include a value backed currency, and specific rules for recessionary scenarios. Stable currency is the backbone of a stable economy. If we don’t have well known, consistent rules for our currency, uncertainty will prevent economic growth.

6) To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Sure.

7) To establish Post Offices and Post Roads;

I’m not so sure this is referring to mail couriers. What’s a post road? I wonder if these aren’t referring to the posts they used to have in settlements that were basically community visitor centers. The government has no business in the mail business, and needs to get out. Public (federal) visitor centers and federal buildings are an acceptable power for Congress, but again must be kept under control.

8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What?? Why? Science and innovation is important because it benefits mankind. If it benefits mankind, people pay for it. Why does government need to subsidize it? I don’t like this power being given to Congress.

9) To constitute Tribunals inferior to the supreme Court;

I think I’d rather this power be in the hands of the Judicial Branch, but okay.

10) To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

Okay, provided those crimes are committed against us.

11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Yes.

12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

The power to raise Armies should belong to the Executive Branch. Appropriating money should belong to Congress. I’m unsure what the two year term limit means, but there should be limits constitutionally defined for non-wartime and wartime scenarios.

13) To provide and maintain a Navy;

Same as above.

14) To make Rules for the Government and Regulation of the land and naval Forces;

Sure, but limit the allowable rules to include enrollment/draft regulations, war crimes, and funding. Leave the military conduct rules and strategies to the Executive Branch.

15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

This was obviously added for a different time period. I believe they’re talking about a police force. The military is sufficient to repel invasions and the police can squash insurrections. Yet it should be noted that military power should be granted judiciously for use against internal insurrections. We should be careful lest we find ourselves fighting for our own freedom against our own military.

16) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Police forces should belong to the States, with partial federal funding for the enforcement of federal law. Congress should have no power with respect to them except in defining federal laws and granting funds.

17) To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

This power ought to be limited as well. Government has proven reckless and irresponsible in their spending on buildings, using this power for special interests and pet projects. There ought to be an enumeration of acceptable buildings Congress is empowered to construct, as well as constitutional rules limiting the funds available for such projects. Adding to this list of buildings would be done by constitutional amendment only.

18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Their primary duty is to make the laws to protect each citizens rights to life, liberty, property, and well-being. Their law-making abilities were granted far too much privilege in this section of the Constitution, and thus we find federal laws overseeing all miniscule aspects of our lives. Rather than protecting our rights, they’ve usurped them through law making. If I were to rewrite the Constitution, I would be concise and clear as to which powers the Congress is given, and it would not be a long list.

Remember the 9th and 10th Amendments:

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.

Any powers not enumerated in that list of 18 powers are ours, not to be usurped by the Congress. Congress's attempts to govern our businesses and lives as they see fit is, by virtue of the 10th Amendment, unconstitutional. But the powers granted it in the Constitution were too great, and allowed Congress to build its power to where it is now, and that was the biggest mistake the Founders made.