The Constitution established a federal government of limited powers, limited not only by their explicit and full enumeration in Article 1, § 8, but also by the enumeration (but by no means an exhaustive one) in the Bill of Rights of certain important rights upon which the government must not trespass. Any power exercised by the government which does not fall within the list given in § 8 has been usurped, either from the people themselves or from the states, and being extra-Constitutional, is therefore illegitimate. Now the Bill of Rights is not so much a limit on the powers per se, but rather a limit on the means by which such powers may be exercised.
For example, the lack of an enumerated power to restrict the ownership of arms in § 8 makes the Second Amendment unnecessary as a limit of power. The purpose of the amendment then, is to prevent any restriction on the right as a consequence of the exercise of an otherwise Constitutional power. This is the only way that each and every part of the Constitution can be given its proper significance, and the protections envisioned by our Founders can be realized.
Another part of those protections was the division of powers between three coordinate branches of government, with the idea that each branch would jealously guard its own power from the other two, and thus prevent the consolidation of all power in one of them. That same jealousy of the state governments with respect to the powers reserved to them was also part of the concept, as a guard against encroachment from the feds in those areas. Yet, with all of that, the Founders still warned that it would require eternal vigilance by the people in order to preserve our liberty. Alas, we failed to heed those warnings, and so our liberty is now in serious decline, if not yet on its last legs.
I've always been amazed at the amount of foresight exhibited by the writers of the Anti-Federalist Papers to the dangers in the proposed Constitution, especially since two centuries of experience under it has borne out so many of their predictions. At the same time, in answering the objections of those writers, James Madison, Alexander Hamilton and John Jay responded with the Federalist Papers which, despite giving important insights into how the Constitution was meant to be construed, are pretty much universally ignored by those in power as any kind of guide today. With this background, it really shouldn't be a surprise how much our straying from the Founders' plan has cost us in terms of freedom.
The original scheme of limited delegated powers created a government in the character of a common agent, owing an equal fiduciary duty to every citizen. The enumerated powers were those that could be carried out by such a common agent, without violating its duty to any one of its principals. This is discussed more fully in my oft-cited1 article "Government? Agents!" in issue #248 of the Reasonable Action newsletter. The delegated powers are few in number because there are so few powers which can effectively be exercised by an agent who has so many principals whom he must equally serve. Whenever that agent wanders into other fields, he must necessarily favor one (or some) of his principals' interests over others, thereby violating his fiduciary duty to the latter.
One of the clearest examples of this is Prohibition, as well as its current incarnation, the War on Drugs. Nowhere in the Constitution is the federal government granted power to prohibit any substance, and rightly so.
But at least when it wanted to prohibit the use of alcoholic beverages, it sought and obtained an amendment to the Constitution to give it that power. And yet, the power granted by the 18th Amendment is significantly different from those granted in Article 1, § 8, in that it can't be exercised consistently within the framework of a government acting as a common agent. That is, whenever it attempts to enforce prohibition against anyone who has an interest in drinking alcohol (an activity that in and of itself, does not harm others), it is acting contrary to that person's interests. And as history bears out, there were many people who had an interest in drinking alcohol, enough that eventually Prohibition was repealed, but not before irreparable harm was spread far and wide, in the form of, among other things, police corruption, organized crime, and their attendant victims.
But even more than these is the continuing harm to the principle of government as a common agent. The ratification of the 18th Amendment began a formal shift towards what Frederic Bastiat, in The Law, terms "legalized plunder," or in general, the use of the coercive force of government to benefit one group over another.
For this reason, to my mind, the 18th Amendment was illegitimate from the start.2 And then came the War on Drugs, for which the government didn't even bother to amend the Constitution. Once again, the harm caused by this travesty is immense.
In addition to the rampant corruption at all levels of government and the organized crime cartelsthat do much of the trafficking in "illegal"drugs, we can also add the imprisonment of tensof thousands in federal prison alone.3 But again,the more important damage is the erosion of ourrights and solidification of legalized plunder andoppression as the modus operandi of all levels of government.
Just stop and think of all the ways in which the War on Drugs has diminished our liberty. No-knock warrants, usually performed by militarized SWAT teams, are largely justified because of the supposed ease of disposing of the evidence in drug cases. The recent
murder of Jose Guerena in Arizona by trigger-happy jackbooted thugs (this time, from the Pima County SWAT) is one of the latest of many examples of the tragedies resulting from such tyrannical actions. Money laundering and structuring laws, which invade our privacy and require banks and other financial institutions to report any "suspicious" transactions we make in cash, are based on Article 3, §1(b)(i) of the 1988 United Nations Convention Against Illicit Traffic In Narcotic Drugs and Pyschotropic Substances.4 Once in place however, these laws were used to jail and confiscate the property of a minister and his wife for daring to withdraw money from their bank accounts in amounts not approved by the government.5 Likewise with asset forfeiture laws, which are used to steal any property the government can claim has been involved in some crime.6 If some drug-sniffing dog gives the sign, well, you can just kiss your property good-bye.
T he point of all this is just that once we deviated from the original plan, which authorized only such powers as could be exercised toeveryone's equal benefit, we stepped onto the slippery slope of full-scale tyranny. Trying to use the force of government to coerce others into acting the way you would prefer them to act, rather than the way they choose for themselves, will always end in it being used against your interests, too. After all, if you can use it that way today, then what more justification need be given tomorrow when some other group wants to use it to enforce their preference for your behavior? Eventually, the government becomes so corrupt with power that it no longer even cares what preferences their "subjects" may have. They will use that power of legalized plunder to benefit none but themselves, all the while claiming that it's the "will of the people."
This is the reason why it is so important to recognize the demise of the principle in the first step against it, and to deny it then. Because once the slide starts, it is much harder to regain our footing. But if we are ever to restore liberty in this country, we must find a way. We here at the Fellowship believe the Liberty Works Radio Network plan is just such a way, and we hope that you will continue to help us in our efforts to keep that plan alive.
