Government exceeds power

November 4, 2009


Does the U.S. Constitution stand for anything in an era of government excess? Can that founding document, which is supposed to restrain the power and reach of a centralized federal government, slow down the juggernaut of czars, health insurance overhaul and anything else this administration and Congress wish to do that is not in the Constitution?

The Framers created a limited government, thus ensuring individuals would have the opportunity to become all that their talents and persistence would allow. The Left has put aside the original Constitution in favor of a “living document” that they believe allows them to do whatever they want and demand more tax dollars with which to do it.

Can they be stopped? Some constitutional scholars think the Tenth Amendment offers the best opportunity. The Tenth Amendment states: “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.”

In 1939, the Supreme Court began to dilute constitutional language so that it became open to broader interpretation. Rob Natelson, professor of constitutional law and legal history at the University of Montana, has written that even before Franklin Roosevelt’s court-packing scheme, it was changing the way the Constitution was interpreted, especially, “how the commerce and taxing powers were turned upside-down, the necessary and proper clauses and incidental powers, the false claim that the Supreme Court is conservative, how bad precedent leads to more bad court rulings, state elections as critical for constitutional activists, and more.”

While during the last seven decades the court has tolerated the federal welfare state, Natelson says it has never, except in wartime, “authorized an expansion of the federal scope quite as large as what is being proposed now. And in recent years, both the Court and individual justices — even ‘liberal’ justices — have said repeatedly that there are boundaries beyond which Congress may not go.” ... “Chief Justice John Marshall once wrote that if Congress were to use its legitimate powers as a ‘pretext’ for assuming an unauthorized power, ‘it would become the painful duty’ of the Court ‘to say that such an act was not the law of the land.’”

It would be nice to know now what those boundaries are and whether Congress is exceeding its powers as it prepares to alter one-sixth of our economy and change how we access health insurance and health care.

Natelson makes a fascinating argument in his essay, “Is ObamaCare Constitutional?” (www.tenthamendmentcenter.com/2009/08/18/is-obamacare-constitutional), using the Court’s Roe v. Wade ruling in 1973. In Roe, he writes, the court struck down state abortion laws that “intruded into the doctor-patient relationship. But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB3200. ‘Global budgeting’ and ‘single-payer’ plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.”

Constitutional attorney John Whitehead, president of The Rutherford Institute, tells me, “Although the states surrendered many of their powers to the new federal government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution’s text. The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and federal governments would exercise concurrent authority over the people. The Court’s jurisprudence makes clear that the federal government may not compel the states to enact or administer a federal regulatory program.”

Lawyers are busy writing language only they can understand which seeks to circumvent the intentions of the Founders. But it will be difficult to circumvent the last four words of the Tenth Amendment, which state unambiguously where ultimate power lies: “...or to the people.”

Americans who believe their government should not be a giant ATM, dispensing money and benefits to people who have not earned them, and who want their country returned to its founding principles, must now exercise that power before it is taken from them. The Tenth Amendment is one place to begin. The streets are another. It worked for the Left.


OutlawJHawk 8 years, 6 months ago

Cal should include the Federal IN-Justice System on the list of overempowered federal entities.

jaywalker 8 years, 6 months ago

I smell a long list of But Bush posts comin' on........

mickeyrat 8 years, 6 months ago

So if someone suggested to Cal that, yes, "ultimate power," according to the Tenth Amendment, lies "with the people... who want their government to be a giant ATM, dispensing money and benefits to people who have not earned them," would his constitutional-scholar brain implode?

Stuart Evans 8 years, 6 months ago

i love how the government is a giant ATM and also the thug robbing you at that ATM. I'd give up going to the ATM, but I'm not allowed to or the thug will come to my house with his DOJ & IRS & DEA and huff and puff, oh wait that was the big bad wolf. same thing.

Stuart Evans 8 years, 6 months ago

it's not just a bad joke Tom, it's been a crime.

puddleglum 8 years, 6 months ago

ahhhh. the best thing about reading any cal thomas aritlcle: knowing that he is old and irrelevent, and he will die soon.

Rex Russell 8 years, 6 months ago

Did it exceed it's power in wiretapping it's own citizens without court order? Did it exceed it's power when it kidnapped people in foriegn countries off thier streets? Did it exceed it's power while holding US citizen without chance of bail or legal council? Did it exceed it's power with "enhanced" interrogation techniques? I didn't hear much of a cry of overstepping and overreaching then. That's what makes Cal a partisan hack with no objectivity.

MyName 8 years, 6 months ago

Has it struck anyone else as odd that the Republicans have been getting their butts whipped so hard in recent years that they have to reach for gubernatorial off-year elections to scrape together any good news? And they can't even manage to pick up the spare by having "Palin's candidate" win in NY.

I think it's probably due to the fact that the "brains" of the party is now people who are completely out of ideas like good ol' Cal. If someone here can explain to me how torturing and disappearing people without so much as a Habaeus hearing is constitutional, while passing a law that clearly is designed to "promote the general welfare" is not, I would appreciate.

And I'm glad that Cal Thomas cares about privacy to the point where he's willing to make sure other people can't get medical care so that he can protect his, but what I want to know is how this law would be unconstitutional while warrantless government spying on its citizens is not.

This is a case of someone who is willing to put the good of their party ahead of America, and they don't even have the moral rectitude to stick to the principles that they claim to own. This is why America is rejecting the Right and will continue to do so until they get their act together.

georgiahawk 8 years, 6 months ago

If it is not a living constitution than it is a dead constitution!

jonas_opines 8 years, 6 months ago

jaywalker: For most Cal Thomas columns, that's a pretty appropriate answer. His silence on those types of things during the last Republican administration is both deafening, and telling.

MyName 8 years, 6 months ago

I'm not surprised by Cal's opinion piece at all. His willingness to strain at a gnat and swallow a camel (as long as it promotes the GOP's interests) has been shown time and again.

What I'm surprised about is the fact the previous administration played faster and looser with both the constitution and the budget and yet people here seem to only give a crap now, when "their guy" is out of office. Cognitive dissonance anyone?

tbaker 8 years, 6 months ago

Until the meaning of "general welfare" in Article 1, Section 8 is either defined by amendment, or Butler v. US is over-ruled by new Supreme Court precedent and restored to it's pre-Butler meaning, the looters in DC will continue to run amuck, borrowing and spending without constraint. State nullification via the 10th amendment is currently the only defense against the out of control congress.

beawolf 8 years, 6 months ago

No one cares about the political affiliation of Governors. They have little influence over national policies. They are mainly elected on personality and the failures/successes of the previous administration.

The more interesting story is how Republicans jumped ship on one of their own in favor of a third party candidate (who still lost). The GOP base is falling apart as they struggle internally.

Jimo 8 years, 6 months ago

So if some State wanted to legalize all drugs, Cal's argument is that the feds couldn't stop them, right? (Because I can assure you that banning drugs and criminalizing their use isn't anywhere in the Constitution.)

Perhaps Cal can lead this effort through the courage of his convictions? (Don't hold your breath - Cal doesn't provide an argument here, just posturing.)

jaywalker 8 years, 6 months ago


No argument on that point whatsover.

Brent Garner 8 years, 6 months ago

For all of you sputtering about Bush, let us assume you are right and grant that Bush exceeded his constitutional authority. Does that justify Obama and his administration doing the same? Since when would two wrongs make a right?

Scott Drummond 8 years, 6 months ago

Democrats picked up two seats in the US Congress last night. Hard to fathom those who interpret that as a detriment to Obama.

The demonstrated political impotence of Beck, Limbaugh and Palin, et al., now that is fairly telling. Their influence is not sufficient, apparently, to swing an election in a district that has been reliably republican since the Civil War. Interesting.

mdfraz 8 years, 6 months ago

bkgarner, that is a PERFECT post. Even assuming for the sake of the argument that Bush overstepped, which he may very well have, does that mean that criticizing Obama and his crew is any less legitimate? I lean right on a lot of issues, but ANYONE who disregards the Constitution, regardless of party, is an enemy of mine. I don't hold it to be infalliable, but it is the law of the land, and it is the set of rules that we all agreed (a couple centuries ago, yes) to be bound by. If you want to change what is "constitutional", then amend the Constitution. Until then, you are bound by what it says. That goes for both parties.

tbaker 8 years, 6 months ago

And the winner is: bkgarner & mdfraz: Bravo!

The looters in congress who have sworn to support and defend our constitution are it's biggest enemies. Their disregard for it is treasonous.

The speaker of the house recently scoffed and laughed when questioned about the constitutionality of the health care bill. She said, "Are you serious?" She will soon see that that we are.

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