These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives everything its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.”

So began the first of 16 pamphlets under the title “The American Crisis,” by patriot Thomas Paine. These very words were read aloud to General George Washington’s forlorn and
bedraggled men on Christmas 1776, the night before the Battle of Trenton.

Consider the backdrop: For the six months since the Declaration of Independence, Americans had been in almost constant retreat. To a disinterested observer, the American cause must have seemed hopelessly quixotic. To many patriots as well, it appeared all but lost. But Paine’s stirring words helped give the troops the morale boost they needed. The next day they accomplished the impossible, capturing nearly the entire force arrayed against them. Desertions plummeted and reenlistments soared.

Lovers of liberty need a little Paine today in the face of all the pain around us. It seems at times that the world has gone mad. Companies that lose billions are being bailed out by a government that loses trillions. The same federal Leviathan that outlaws competition in first-class mail delivery but still can’t deliver letters at a profit now supposedly knows how to run auto companies, banks, and insurance firms. Debt, deficits, bureaucracy, regulation, government spending—the depressing stuff already in frightful superabundance pre-financial crisis—now threaten our diminishing liberties more than ever before. The cover of the March 15 issue of Newsweek proclaimed,“We Are All Socialists Now.”

No Sunshine Soldiers

Maybe we have good reason to feel like those dispirited troops on Christmas Day in 1776, but
we should learn from what they did just a day later. We can either be summer soldiers and sunshine patriots, or we can let the very principles we profess be our rallying cry for the battles ahead.

Eternal optimist though I am, I admit that pessimism really tugs at me when I read the morning papers. At every speech I give these days, there’s a sizable portion of the crowd that seems ready to crawl under a rock and let the world go to a statist hell in a hand basket.

But then I ask myself, what good purpose could a defeatist attitude possibly promote? Will it make me work harder for the causes I know are right? Is there anything about liberty that an election or events in Congress disproves? If I exude a pessimistic demeanor, will it help attract newcomers to the ideas I believe in? Is this the first time in history that believers in liberty have lost some battles? If we simply throw in the towel, will that enhance the prospects for future victories? Is our cause so menial as to justify deserting it because of some bad news or some new challenges? Do we turn back just because the hill we have to climb got a little steeper?

Readers of this magazine [The Freeman] should know the answers to those questions.

This is not the time to abandon time-honored principles. I can’t speak for you but someday I want to go to my reward and be able to look back and say, “I never gave up. I never became part of the problem I tried to solve. I never gave the other side the luxury of winning anything without a rigorous, intellectual contest. I never missed an opportunity to do my best for what I believed in, and it never mattered what the odds or the obstacles were.”

A Tradition of Courage

Remember that we stand on the shoulders of many people who came before us and who persevered through far darker times. The American patriots who shed their blood and suffered through unspeakable hardships as they took on the world’s most powerful nation in 1776 are
certainly among them. But I am also thinking of the brave men and women behind the Iron Curtain who resisted the greatest tyranny of the modern age, and won. I think of those like Hayek and Mises who kept the flame of liberty flickering in the 1930s and ’40s. I think of the heroes like Wilberforce and Clarkson who fought to end slavery and literally changed the
conscience and character of a nation in the face of the most daunting of disadvantages. And I think of the Scots who, 456 years before the Declaration of Independence, put their lives on the line to repel English invaders with these thrilling words: “It is not for honor or glory or wealth that we fight, but for freedom alone, which no good man gives up except with his life.”

As I think about what some of those great men and women faced, the obstacles before us today seem rather puny. We just need to gird our loins. We have to get a lot smarter and better at reaching more fellow citizens with a compelling alternative to the dead hand of the corrupt and incompetent State. We need to put confident smiles on our faces and sally forth.

Time to Rally

We should not squander a second feeling bad for ourselves. This is a moment when our true character, the stuff we’re really made of, will show itself. If we retreat, that would tell me we were never really worthy of the battle in the first place. But if we resolve to let these tough times build character and rally our dispirited friends to new levels of dedication, we will look back on this occasion someday with pride at how we handled it. Have you called a friend yet today to explain to him or her why liberty should be a top priority?

Nobody ever promised that liberty would be easy to attain or easy to keep. The world has always been full of greedy thieves and thugs, narcissistic power seekers, snake-oil charlatans,
unprincipled ne’er-do-wells, and arrogant busybodies. Sometimes they’re nattily dressed in custom-tailored, pin-stripe suits and give good speeches; sometimes they’re bedecked in jewel-studded robes and give lousy speeches; on yet other occasions they wear well-worn street clothes and don’t bother with a speech at all as they hold you up. It doesn’t matter how they’re dressed or what they say. No true friend of liberty should just roll over and play dead for any of them.

Wipe that frown off your face and get to work. Liberty’s future depends on you.

Lawrence W.Reed is the president of the Foundation for Economic Education

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James Madison, the Father of the Constitution, established a concept of dual sovereignty, “…where the state and federal governments might coexist as sovereigns over the same space, representing and acting on behalf of the people of the United States, the ultimate source of authority….,” writes, Alex Kozinski and Steven Engel in an article entitled, “Recapturing Madison’s Constitution: Federalism without the Blank Check,” published in James Madison and the Future of Limited Government.

However, this political theory of federalism has come to a crashing halt, in part, due to poor interpretations, by Congress and the U. S. Supreme Court, of what is know as the General Welfare Clause. Once again Professor Robert G. Natelson has done excellent research of what he believes to be the true meaning of The General Welfare Clause. I have only included his introduction and Conclusion to the 56 page law review article with a link that you can download to rest of the article for further reading. I have left his footnotes off this short post. [Click Here to download his excellent article]

If we are going to take the battle, for liberty, and constitutional government, as intended by the Framers, seriously and with effective arguments, we must do a little heavy reading. Enjoy!

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THE GENERAL WELFARE CLAUSE AND THE PUBLIC TRUST*

By Robert G. Natelson

What think you of [Hamilton’s] commentary…on the terms “general welfare”? – The federal Gov’. has been hitherto limited to the specific powers – If not only the means but the objects are unlimited, the parchment had better be thrown into the fire at once….
-James Madison

INTRODUCTION

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general welfare of the United States: but all Duties, Imposts and Excises shall be uniform throughout the United States

This is the Taxation Clause – the first in the Constitution’s enumeration of congressional powers. It has been controversial since it first saw the day of light. The most controversial part of all has been the phrase in the middle (“to pay the Debts and provide for the common Defense and the general welfare of the United States”). It is called the General Welfare Clause, and it is the subject of this Article.

The General Welfare Clause is one of the two principal constitutional pillars supporting the modern welfare state – the other being the commerce clause. While the Commerce Clause supports most unfunded federal regulation, the General Welfare Clause is said to include an implied spending power used to justify federal spending programs and the regulatory conditions attached to them. For that reason, the General Welfare Clause is sometimes called the Spending Clause.

This Article examines the three traditional of the General Welfare Clause. These are, first, that it is a plenary grant of regulatory and spending power to Congress; second, that it is a plenary grant of spending power only; and, third, that it is not a grant of power at all. I find severe textual problems with the first and second interpretations, and my subsequent historical analysis confirms that those interpretations have little basis in original understanding. I find that the third view is the most textually sound.

Examination of history, however, shows that the General Welfare Clause is more than a mere “non-grant” of spending power. It was intended to be a sweeping denial of power – specifically, it was intended to impose on Congress a standard of impartiality borrowed from the law of trusts, thereby limiting the legislature’s capacity to “play favorites” with federal tax money.

Of course, some may argue that the United States Supreme Court already has adopted an interpretation of the General Welfare Clause, and that it has been settled for some time. An academic response is that an authoritative historical understanding of the Clause will help us assess the forces that induced the Supreme Court to get its own version wrong (or right). A practical response is this: One lesson of the late twentieth century is that in politics (of which constitutional interpretation is arguably a branch), the proposition that everything is settled is a safe bet only for losers. The world is changing too fast to take any political settlement for granted. Ask the people of East Berlin.

CONCLUSION

The current Supreme Court interpretation, the Hamiltion-Story view, stands the original meaning of the General Welfare Clause on its head. The Clause was not a qualified grant of spending authority, as Hamilton claimed. Nor did it merely point to other powers, as Story understood Madison to have said. On the contrary, the General Welfare Clause was an unqualified denial of spending authority. It did not add to federal powers; it subtracted from them.

The General Welfare Clause was designed as a trust-style rule denying Congress authority to levy taxes for any but general, national purposes. Because the Clause prevented Congress from using tax revenue for local or special interest purposes, the Clause indirectly qualified the appropriation power. Even if some enumerated power could be enlisted to support the appropriation, federal tax money was not to be used for the private benefit of a museum – however worthy – in Savannah, nor an artist – however struggling – in New York.

What was to happen if government official violated the restrictions of the General Welfare Clause? Not many of the Federalists addressed the issue. But three did. David Ramsay (“Civis”) rather naively suggested only electoral retaliation. Noah Webster suggested that remedy, but also countermeasures from the states and impeachment. At the Virginia ratifying convention, Federalist leader George Nicholas offered the answer most relevant today: [W]ho is to determine the extent of such powers? I say, the same power which, inn all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void, enforcement ultimately by the courts.

*52 U. Kan. L. Rev. 1 (2003)

Dr. Natelson, has kindly, given For Freedom’s Sake, permission to make his Article available as a free downloadable PDF file. Click here to download. Please read this document and be informed as to it contents. Send it to your friends or send them here.

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, www.umt.edu/law/original-understanding and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

This Website is Dr. Natelson’s home site at The University of Montana

http://www.umt.edu/law/faculty/natelson.htm

This website provides a portal for selected scholarship that examines the original understanding and original meaning of the U.S. Constitution. A secondary purpose is to provide links to online resources useful to those researching the Constitution’s original understanding or original meaning.

http://www.umt.edu/law/original-understanding/

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For those of us who love individual liberty, free-markets and limited government, we face each day, burdened, with more news of the march toward socialism and the destruction of the principles of constitutionalism. The principles, upon which this nation were founded, are being discarded for the failed elitist theories of socialism.

I believe, however, that the move, by the current administration, toward a centralized, messianic government, does not reflect the will of the majority of the American people nor does it reflect the intent of the Framers of the Constitution.

We must be reminded, then, by what authority government operates and what limits the Framers of the Constitution intended to impose on government? Russell Kirk explains, in his excellent book, “The American Cause,” writing,

“The constitutions of the American commonwealth are intended – and have successfully operated – to restrain political power: to prevent any person or clique or party from dominating permanently the government of the country. Sir Henry Maine, the nineteenth-century historian of law, remarked that the American Constitution is the great political achievement of modern times. The American constitutional system reconciles popular government with private and local rights. It has been called “filtered democracy” – that is, the reign of public opinion chastened and limited by enduring laws, political checks and balances, and representative institutions. It combines stability with popular sovereignty.

It is one of the great premises of American political theory that all just authority comes form the people, under God: not from a monarch or a governing class, but from the innumerable individuals who make up the public. The people delegate to government only so much power as they think is prudent for government to exercise; they reserve to themselves all the powers and rights that are not expressly granted to the federal or state or local governments. Government is the creation of the people, not their master. Thus the American political system, first of all, is a system of limited, delegated powers, entrusted to political officers and representatives and leaders for certain well-defined public purposes. Only through the recognition of this theory of popular sovereignty, and only through this explicit delegation of powers, the founders of the American Republic believed, could be the American nation keep clear of tyranny or anarchy. The theory and the system have succeeded: America never has endured a dictator or tolerated violent social disorder.

I firmly believe that Americans are not ready to abandon the Constitutional principles of limited government, nor are they ready to allow the federal government to continue to overstep those principles. We have achieved the greatest freedom of any people on earth and history has not provided another prospect for bettering mankind. What it has shown us is that government must be bound “…from mischief by the chains of the Constitution.”

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The natural effort of every individual to better his own condition, when suffered to exert itself with freedom and security, is so powerful a principle, that it is alone, and without any assistance, not only capable of carrying on the society to wealth and prosperity, but of surmounting a hundred obstructions with which the folly of human laws too often encumbers its operations.

The drive for greater government regulation is the drive toward increased poverty, unemployment and the loss of liberty. With the Obama administration pushing an ever expanding federal government plan to take control of our financial institutions, health care system, the auto industry, and its attack on free speech, the time is now to clearly articulate the differences between free markets and free people, and government administered markets and government control of our lives.

For Freedom’s Sake

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“Dangers to a society may be mortal without being immediate. One such danger is the prevailing social vision of our time – and the dogmatism with which the ideas, assumptions, and attitudes behind that vision are held.”

Those two poignant sentences were published over 14 years ago in, “The Vision of the Anointed,” written by Thomas Sowell. As I read these words tonight, I felt the weight of their meaning as we watch a political party, which holds power both in the congress and the presidency, begin a systematic attack on the voices of opposition to their drive to remake America. This attack, on free speech and opposing political views, is wrong regardless of which political party holds power, which is why it is a Constitutionally protected right.

Now the holders of power, “the anointed,” as described by Sowell, are moving to swiftly silence those who would oppose their “vision” of a new America. The dangers inherent in shutting down the political process and debate is real and “mortal.” Sowell describes the reality of these dangers as they have played out in history when he writes:

It is not that these views are especially evil or especially erroneous. Human beings have been making mistakes and committing sins as long as there have been human beings. The great catastrophes of history have usually involved much more than that. Typically, there has been an additional and crucial ingredient – some method by which feedback from reality has been prevented, so that a dangerous course of action could be blindly continued to at fatal conclusion. Much of the continent of Europe was devastated in World War II because the totalitarian regime of the Nazis did not permit those who foresaw the self-destructive consequences of Hitler’s policies to alter, or even to influence, those policies. In earlier eras as well, many individuals foresaw the self-destruction of their own civilizations, from the days of the Roman Empire to the eras of the Spanish, Ottoman, and other empires. Yet that alone was not enough to change the course that was leading to ruin. Today, despite free speech, and the mass media, the prevailing social vision is dangerously close to sealing itself off from any discordant feedback from reality. [Emphasis Added]

I am more aware of the uncertainty of the prospects for human liberty that I thought I could ever imagine. Blogging, on these matters, is not a form of entertainment or something to fill my free-time. No, the urgency of our cause, to protect human liberty, is an obligation for those of us who have benefited from the spilt blood and sacrifices of our Founders. BTW, please watch the John Adams (HBO Miniseries) DVD if you want to see just how much these great men and women sacrificed. We must all do our part and we must all labor together For Freedom’s Sake.

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Frederic Bastiat, in his monumental work, “The Law” makes the case, that once we go down the path of using the law to violate liberty and private property, in the name of equality, there is no stopping it. He asks the question, “Once started, where will you stop? And where will the law stop itself””

Please think about the truth of the statements that Bastiat makes below. Share them with your friends and apply these insights to your evaluation of your government. Bastiat writes:

The mission of the law is not to oppress persons and plunder them of their property….Its mission is to protect persons and property.

Furthermore, it must not be said that the law may be philanthropic if, in the process, it refrains from oppressing persons and plundering them of their property; this would be a contradiction. The law cannot avoid having an effect upon persons and property; and if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property.

The law is justice—simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this.

If you exceed this proper limit—if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic—you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

The speed at which the current administration and congress is moving creates a barrier to the appropriate dialog necessary to ensure competent public policy decisions. This, I believe, is by design. We must keep thinking through what we are hearing and give thoughtful responses to our government officials. Me must slow this “train” down.

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