We shall endure

1885 History of US flags, Wikimedia Commons

Different flags, but for the same country, people and history. Illustration from High School textbook in 1885, titled “History of the US”, Wikimedia Commons

We have endured a civil war, multiple depressions and recessions, dreadful Supreme Court decisions, regional and world wars, a cold war, and divisive partisan rhetoric, but now it seems to some, due to our current political and economic hardships, that our government needs to return to an interpretation of the Constitution that was argued over one hundred years ago.

Senators Tom Coburn (R-OK) and Rand Paul (R-KY) introduced legislation to enforce constitutional limitations on congressional power called the ‘Enumerated Powers Act of 2013‘.

“Many of our nation’s fiscal woes can be linked to Congress’s ignorance of, and refusal to follow, the clear Constitutional limitations on our power to legislate,” Senator Coburn said in a press release.  “Our founders recognized the need for the federal government’s powers to be strictly limited – not only to ensure effective governance but to prevent unrestrained federal overreach. Limiting government is important because it liberates people and expands freedom and opportunity.”

Official portrait of United States Senator (R-OK).

Official portrait of United States Senator (R-OK). (Photo credit: Wikipedia)

“Today,” Coburn continued, “Americans have more government but less liberty, less economic mobility, and less disposable income. I am hopeful this legislation will correct this trend by reconnecting Congress with the enumerated powers outlined in the Constitution and codifying Congressional accountability to the Constitution.”

In the same press release, Senator Rand Paul stated, “When I ran for the Senate, one of my promises was to fight to pass an Enumerated Powers Act. Politicians in Washington should abide by their oath to uphold the Constitution by only legislating within the powers it gives to the federal government. I am proud to be the lead co-sponsor of Sen. Coburn’s bill to make this a reality.”

According to Senator Tom Coburn’s press release, the Enumerated Powers Act of 2013 does the following:

1)      Requires each Act of Congress, bill, resolution, conference report and amendment to “contain a concise explanation of the specific authority in the Constitution” that is the basis for its enactment.

2)      States any legislation that abolishes a Federal activity, spending or overall power may cite the 9th or 10th Amendments to the Constitution.

3)      Prohibits the use of the Commerce Clause, except for “the regulation of the buying and selling of goods or services, or the transporting for those purposes, across boundaries with foreign nations, across State lines, or with Indian tribes…”

4)      Allows a point of order to be raised in either House of Congress for bills that fail to cite constitutional authority.

5)      Cites the constitutional authority to enact the Enumerated Powers Act, which falls under Article I, Section 5, Clause 2 of the Constitution, allowing each House to determine the rules of its proceedings.

Official portrait of United States Senator (R-KY).

Official portrait of United States Senator (R-KY). (Photo credit: Wikipedia)

If this law was in effect in the past, this constitutional limitation would have hindered Congress’s power to create the ‘Child Labor laws‘, among many other laws passed to protect the American worker in the early twentieth century, including a nationwide minimum wage, a national ban on workplace discrimination, a national labor law and an overtime in most industries.

The rights of labor were not explicitly given in the writing of the Constitution, but it was argued that Congress could use the ‘Commerce Clause‘, Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,”  so, because of this clause, it was believed this gave them the ability to legislate for the rights of labor, across state lines.

By limiting the scope and power of congress, this bill removes the voice of the people, that elect representatives in congress to pass legislation for their benefit. This is clearly an effort to rehash the arguments made over a century ago concerning the 9th and 10th Amendments versus the Commerce Clause of the Constitution. The 9th and 10th Amendments read as follows:

9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10th Amendment: 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 the late 19th century, the Supreme Court held the same position as Coburn and Paul, and this view held sway nearly for a half a century. This interpretation only permitted federal laws that regulated the transport of goods for sale or a sale itself, and manufacturing, mining, production and agriculture were not allowed to be federally regulated.

In fact, in the 1918 decision of Hammer v. Dagenhart, Justice William R. Day argued that Congress could not address labor related inequalities, such as child labor laws, because they considered the power was given to the states to enact differing laws within the scope of their police powers.

The government argued that our congress has the right to use the Commerce Clause to justify the use of legislative powers over the powers given to the states, and this has caused considerable controversy concerning the balance of power between the federal government and the states.

According to the Cornell University of Law, “The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on states’ powers to regulate.”

By removing the people’s representatives right to create laws in these matters, the only recourse left would be to continually create Constitutional Amendments instead of passing laws, which is difficult enough in the best of times, considering it would have to be proposed by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures.

This agenda is being pushed to return to the days that were much friendlier to private enterprise, and it matters little that our country has repeatedly overcame every challenge that came before it. They say to you, “the government has failed you, so it must be undone.” To what, exactly, will our government become, when they are done?

These attempts can only be made while we are divided and frayed, and removing power from the legislature, with this bill, will only remove power that was given to the people, throughout our history.

To those that declare our lot is done, remember, the will of the people will have the final say, and it is important to remember that pushing a people to destitution and powerlessness will only cause them to rise up against you, in the election booth.

John White Alexander - Samuel L. Clemens (Mark Twain) - Wikimedia Commons

John White Alexander – Samuel L. Clemens (Mark Twain) – Wikimedia Commons

Mark Twain wrote in ‘A Connecticut Yankee in King Arthur’s Court':

You see my kind of loyalty was loyalty to one’s country, not to its institutions or its office-holders. The country is the real thing, the substantial thing, the eternal thing; it is the thing to watch over, and care for, and be loyal to; institutions are extraneous, they are its mere clothing, and clothing can wear out, become ragged, cease to be comfortable, cease to protect the body from winter, disease, and death.

The political parties have become tattered and torn rags, and have become useless in their ability to offer protection against the depredations from a few that seek wealth and power. If any one party takes part in this removal of power, the repercussions, against them, will be felt for decades.

There are many that mistakenly believe our country is defined by our wealth of resources and entrepreneur spirit alone, but we are also defined by the progressive and populist principles that allowed a people to rise above destitution and instilled a hope, in everyone, that anything was possible.

Mark Twain had it right regarding our constitution:

I was from Connecticut, whose Constitution declares all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and that they have AT ALL TIMES an undeniable and indefeasible right to ALTER THEIR FORM OF GOVERNMENT in such a manner as they may think expedient

Considering all of the laws that have been passed to protect the American worker, they show why our country is considered such a great republic, because when the need arose, we maintained our identity, strong and defiant, by calling for changes that would better our lives, through our elected officials.

Right now, we have that power, as citizens, to control our destiny, but if we continue to allow the federal government to be stripped, little by little, of its duties to the people, it will become nothing more than the Articles of Confederation of old.

No matter what you have been told, these ideas have been tried and failed in the past, and there was a reason why the changes, to protect labor, were made in the first place. Our country has already been through many trials and tribulations, so there is no reason to believe that we cannot deal with the problems before us now. We shall endure, as we always have.

*The bill is cosponsored by Senators Ayotte (R-NH), Barrasso (R-WY), Blunt (R-MO), Boozman (R-AR), Burr (R-NC), Chambliss (R-GA), Coats (R-IN), Corker (R-TN), Cornyn (R-TX),  Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Fischer (R-NE), Flake (R-AZ), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), Heller (R-NV), Inhofe (R-OK), Isakson (R-GA), Johnson (R-WI), Lee (R-UT), McCain (R-AZ), McConnell (R-KY), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Scott (R-SC), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R-LA), and Wicker (R-MS).

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3 thoughts on “We shall endure

  1. John, I’d guess on many political and economic issues you and I are from the opposite sides of the shop. That said, I thought your essay summed up your position clearly, better than most that I read in the blogosphere. Please accept my best wishes.

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