PART 1 of 2
Timothy N. Baldwin, JD.
January 9, 2010
A Response to Richard Latimer
There is nothing new about the content of the article authored by Richard Latimer, entitled, A Lesson In Constitutional Law For Rep. Perry, posted on January 4, 2010. You can read the article for yourself, but Latimer attempts to “set straight” Rep. Jeffrey Perry’s method of constitutional construction concerning the general welfare clause and the tenth amendment of the US Constitution, as it relates to the federal government’s power of passing the national health care bill.
This article is not an attempt to defend the honor of Rep. Perry, as correct as he may be on the subject discussed. It is not to make Latimer “see the light”, for I believe that many people who have adopted certain philosophies, world views and political ideas will never “see the light,” without an intervening act of God. I write this article to expose just a few of the flaws of the social and government philosophy that has been stressed in our society for over 100 years, and to defend the principles of a free federal constitutional republic, made up of states, for the enlightenment of those who still have an open mind to something other than what the tories/nationalists/oligarchies/globalists say.
General Welfare Clause: A Grant or a Limitation of Power?
A Grant of Power
Latimer essentially argues that the preamble (to the constitution and/or Article 1, Section 8--he is not clear on which, but for purposes of analysis, it matters not)--specifically, the “general welfare” clause--grants power to Congress and was intended “to state the broad, fundamental purposes of our democratic constitutional government in light of which all of the more specific provisions which follow must be understood.” Put differently, Latimer suggests the following method of constitutional construction of the words, “general welfare”: the specific enumerated powers granting certain limited powers to the federal government are to be constructed in light of the words, “general welfare.”
This method would go something like this. Suppose the federal supreme court needs to interpret the meaning of the words, say, “commerce among the several states”, in a case whose issue is the extent of Congress’ power to regulate commerce. If the court were to use a constitutional construction method as suggested by Latimer, the court would impose the meaning of said words that comports to whatever end would accomplish the goal of the “general welfare” of the American people, regardless of state sovereignty or limiting enumerating language to the contrary. The legal question would go, “Does this particular law passed by Congress promote the general welfare?” If yes, then Congress may regulate that commerce, and as such, the states and the people necessarily do not have the power to regulate or interfere with such law. Thus, the limit to the power is not the actual words of the delegation (“commerce among the several states”), but the end result of the law, that is, “general welfare.” Unfortunately, this is in fact the type of construction method that federal courts have used for many years (though not necessarily admitted as such). Consequently, the federal government (and those within the control of its matrix) has done a great job as feeding the ignorance and deception of the people of the states relative to what a limited federal constitutional republic is.
This method contains nothing but disingenuous political thought and standard, to where a part (“general welfare”) of the whole (the constitution) is used to defeat the very purpose of the whole. This flawed standard is analogous to saying that the federal government has no power to encroach state sovereignty (which the tenth amendment declares), but that one branch (i.e. the Judiciary) out of the three in the federal government has the power to define what state sovereignty is. If the standard of federal power was the “general welfare” and that all powers are to be judged in that light, please explain: why enumerate any powers at all? Why suggest that the federal government is a limited government? Why go through the formalities of actually writing a constitution? Why debate the extent of its powers for years before its ratification? Why suggest to the ratifiers that the federal government is strictly bound by the limitations enumerated and that the states have an inviolable line of sovereignty within their borders?
Did the founders and ratifiers spend years of intense and heated debate and discussion on the purpose of a constitution; the principles of free government; the difference between a federal verses national verses monarchy verses democratic government; the need for a limited federal government; the absolute retention of the states’ powers; the lines of sovereignty and the words which would adequately effect these ends, all to be misinterpreted and deconstructed by the virtually limitless power of the “general welfare” clause? How ludicrous and illogical a thought!--unless of course you are not concerned about the evils of human nature, the abuse of power, the limitation of government, state sovereignty as expressed in the Law of Nations (which is acknowledged in the US Constitution), federalism (which was admittedly the most superior form of government the world had ever seen), and the true character and nature of the union as modified in 1787.
A Limitation on Power
“Latimer’s method” completely ignores and excludes the other constitutional construction method relative to the “general welfare” clause--the one proposed by those who drafted and ratified the constitution. That is, instead of the “general welfare” clause defining the specific enumerations of Congress’ power, the specific powers actually define what “general welfare” is, just as all of the articles and amendments of the constitution and their limitations on the federal government shed light on what “securing the blessings of liberty” is. This method is literally Contract and Law Interpretation 101, which is well-settled that “specific contract provisions prevail over general provisions” and “the general rule of statutory construction is that a specific provision prevails over a more general one.” See, Daff v. U.S., 78 F.3d 1566, 1574 (Fed.C.A. 1996); Crooker v. BATF, 670 F.2d 1051, 1080, FN2 (D.C.C.A., 1981). I guess sound rules of construction do not apply to the most important legal document in our country.
that said, did the term “securing the blessings of liberty”
convey power to the federal government too?! After all, that clause is
in the preamble preceding all the articles in the constitution, which
would convey this power not only to Congress, but to all of the federal
government. They might as well have said, “Congress has the power
pass whatever laws they deem right and just. The President has the power
to execute whatever laws it deems right and just.
The Judiciary shall uphold all laws it deems right and just.” What nonsense! Generic grants of power have long been considered wholly inadequate to check the abuse of power and to limit centralized governments. As one of the authors of the Anti-Federalist Papers noted,
“Before the existence of express political compacts it was reasonably implied that the magistrate should govern with wisdom and justice, but mere implication was too feeble to restrain the unbridled ambition of a bad man, or afford security against negligence, cruelty, or any other defect of mind…Therefore, a general presumption that rulers will govern well is not a sufficient security.” Brutus and Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates, (New York: Signet Classic, 2003), 318.
This rationale was in fact the concern raised about the “general welfare” clause in the proposed constitution in 1787. Consider James Madison’s response in Federalist Paper 41 to these concerns:
“It has been urged and echoed, that the 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,’' AMOUNTS TO AN UNLIMITED COMMISSION TO EXERCISE EVERY POWER which may be alleged to be necessary for the common defense or general welfare. NO STRONGER PROOF COULD BE GIVEN OF THE DISTRESS UNDER WHICH THESE WRITERS LABOR FOR OBJECTIONS, than their stooping to such a MISCONSTRUCTION. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare’…
“BUT THE IDEA OF AN ENUMERATION OF PARTICULARS WHICH NEITHER EXPLAIN NOR QUALIFY THE GENERAL MEANING, AND CAN HAVE NO OTHER EFFECT THAN TO CONFOUND AND MISLEAD, IS AN ABSURDITY, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the LANGUAGE USED BY THE CONVENTION IS A COPY FROM THE ARTICLES OF CONFEDERATION. The objects of the Union among the States, as described in article third, are ‘their common defense, security of their liberties, and mutual and general welfare.' The terms of article eighth are still more identical: ‘All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'’ etc. A similar language again occurs in article ninth. CONSTRUE EITHER OF THESE ARTICLES BY THE RULES WHICH WOULD JUSTIFY THE CONSTRUCTION PUT ON THE NEW CONSTITUTION, AND THEY VEST IN THE EXISTING CONGRESS A POWER TO LEGISLATE IN ALL CASES WHATSOEVER.
“But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. HOW DIFFICULT IT IS FOR ERROR TO ESCAPE ITS OWN CONDEMNATION!” (Emphasis added)
Madison’s response to this constitutional construction (held by Latimer) is quite strong and literally satirical and cynical, actually mocking those who would even propose such an interpretation of the US Constitution. Madison expressly notes that the enumerated powers define the parameters of the “general welfare,” not the other way around as Latimer suggests. Madison even points out that the general welfare, common defense and security of liberty provision clause in the preamble is identical to the one in the Articles of Confederation, just as about all the powers of the federal government are identical. (Sorry, nationalists: the US Constitution was in fact of the same nature and character as the Articles--a union of states, not people.)
In other words, the purpose, character and nature of the federal government did not change from the Articles to the US Constitution. Of course, this theme of constancy between the Articles of Confederation and the US Constitution is consistent throughout the federalist papers, proving in part that the method for constitutional construction is one of limitation, not expansion of federal power, and is one that maintains the inviolable line of sovereignty between state and federal. While the federal courts have completely twisted this principle of constitutional construction since the early 1800s, starting with John Marshall’s court, many supreme court justices have not bought into the nationalist-interpretation of Congress’ power. (“I challenge the broad proposition that the General Welfare Clause is a grant, not a limitation, of power.” Buckley v. Valeo, 96 S.Ct. 612, 740 (1976), Justice Burger.)
Yet, even when the most nationalist-minded founders express the following concerning the role of the federal government, we still have people like Latimer who attempt to defraud the people to believe that the federal government’s powers are more than what has been granted to them and that the states are mere subsidiaries to a mega-corporation, vis-a-vis, the Federal Government:
"The powers delegated by the proposed Constitution to the federal government are few and defined.
Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.” James Madison, Federalist Paper 45.
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If James Madison is correct regarding the general welfare clause conferring power to the federal government, then Latimer is most certainly wrong. If Latimer is right, then we certainly do not live in a free federal constitutional republic. For part two click below.
Click here for part -----> 2,
Go to www.libertydefenseleague.com for articles, speeches and interviews of Timothy Baldwin.
� 2010 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin is an attorney from Pensacola, FL, who received his bachelor of arts degree at the University of West Florida and who graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland School of Law, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies.
Like his father, Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political articles, which he posts on his website, www.libertydefenseleague.com. Baldwin is also the author of the soon-to-be-released book entitled, Freedom For A Change, in which Baldwin expounds the fundamental principles of freedom believed by America’s forefathers and gives inspiring and intelligent application of those principles to our current political and cultural standing.
Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act, the likes of which is undoubtedly a pivotal and essential ingredient to restoring freedom and federalism in the states of America. Baldwin is also a member of freedom organizations, such as The Oath-Keepers, and believes that the times require all freedom-loving Americans to educate, invigorate and activate the principles of freedom within the States of America for ourselves and our posterity.
Web site: LibertyDefenseLeague
E-Mail: [email protected]