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If you think that the way our Constitution has been maligned and abused is a new phenomenon, think again. While the extent to which the institutions, balance and limits of our Constitution have eroded has become more precarious as of late, the erosion did not begin recently and was of the deepest concern to none other than Thomas Jefferson.
There is one letter that is particularly powerful in addressing this subject, dated Dec. 26, 1825 (only about seven months before Jefferson would famously die on July 4, 1826), to a William B. Giles.
The relevant portions are breathtaking:
“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their power.”
The first thing to notice is that Jefferson refers to the federal government as a “branch” of “our government” and he makes it quite clear that the states are the other branch. This is one of the great “checks and balances” nobody is ever taught anymore. Yes, the federal government has its famous three branches, but what is the check on the federal government itself? For the founders, including Jefferson, this check was the states. Note also that Jefferson observes that the federal government is trying to garner all “foreign and domestic power” to itself. Jefferson believed the federal government was rightfully tasked with managing the relations of the United States with foreign nations. As to our internal governance, however, he largely saw this as a state responsibility. Notice that he uses the word “constructions,” which was an 18th and 19th century word for “interpretation.” In other words, the only way the federal government could be engaging in this type of centralization of power was through a false interpretation of the Constitution.
But how, exactly? Read on.
“Under the power to regulate commerce, they assume indefinitely that also over agriculture and manufactures, and call it ‘regulation’ to take the earnings of one of these branches of industry, and that too the most depressed, and put them into the pockets of the other, the most flourishing of all … and aided by a little sophistry on the words ‘general welfare,’ a right to do, not only the acts to effect that, which are specifically enumerated and permitted, but whatsoever they shall think, or pretend will be for the general welfare.”
Sound familiar? It seems that the famous mouse, cookie and milk story could be reframed for the federal government as “If you give the feds a clause, they’re going to usurp an entire Constitution.” Jokes aside, what is truly eerie about this part of Jefferson’s letter is that the same clauses that were being used in his own day to expand and centralize federal power are the exact same clauses being used today (most notably for Obamacare): the general welfare clause and the commerce clause. Take a look no further than the recent Hobby Lobby case and the fact that the federal government is asserting its “right” to coerce a business to provide a particular set of goods and services to their employees, regardless of religious objections, and all under the supposed authority granted by the commerce clause, which merely allows the federal government to regulate commerce “among the several States.” A power that was intended to allow the federal government to keep the states from setting up trade barriers, etc. between themselves has been used to regulate even the most banal aspects of ordinary life and economic activity.
To delve into Jefferson’s objections to the use of the “general welfare” clause would take too long here, but it basically amounts to this: If “general welfare” can mean anything, then why does the Constitution go on to provide an additional 17 clauses in Article I, Section 8, which enumerates Congress’ powers of legislation? Doesn’t that enumeration become pointless if everything can be covered by “general welfare”? Hence Jefferson’s point – such an interpretation leads to only one inevitable outcome: “no limits to their power.”
Jefferson was horrified by nothing less than the “living Constitution” we have all been indoctrinated with our whole lives, a Constitution where words mean only what unelected judges and corrupt politicians say they mean according to their own personal view of what is necessary for “the times,” completely eschewing the far more democratic procedure left to us by our founders in Article V of the Constitution, which allows it to be changed and updated, but requires a solid majority of society to be on board, necessarily obstructing the will of would-be tyrants and other pathological control freaks.
So the next time someone lectures you about how great and innovative and new and fresh our modern notion of a “living Constitution” is, let them know that it’s actually really old, and its way past due for retirement.