As I watch the Debacle at the University of California at Berkeley play out across Social Media, it has become evident to me that neither of the two Primary Opposing Political Elements in the ongoing Colde Civil War are content to let each other exists in their own Paradigms, un-molested.
That no Mainstream Commentarian has taken or isn’t currently taking the time to thoroughly explain that it IS in fact Constitutionally possible for the Primary Opposing Political Elements to “co-exist,” it is even more surprising that no Commentarian in the Alternative Space has taken the time to conduct and present the relevant Analysis.
I would like to therefore present what I would classify as a very reductionist review of four (4) Constitutional Provisions that I posit would, if and where properly leveraged, result in the two Primary Opposing Political Elements comfortably existing within the framework of the current American Union.
10th Amendment: Sphere Sovereignty and Police Power
The Constitution created three “Spheres of Sovereignty”:
- The Prerogatives of each Branch of the Federal Government, as enumerated in Article I (Legislative), Article II (Executive), and Article III (Judicial) of the Constitution;
- The Prerogatives of each State Government, as enumerated in the Tenth Amendment to the Constitution; and,
- The Prerogatives of U.S. Citisens, as enumerated in and throughout the Bill of Rights, Section 1 of the 14th Amendment to the Constitution, and the 15th, 19th, 24th and 26th Amendments to the Constitution.
One of the key objects of the Constitution was to firmly limit the Parameters of the first Sphere of Sovereignty by enumerating its Prerogatives (Articles I – III).
To further solidify that the Prerogatives granted to the Federal Government in and throughout the Constitution is indeed exhaustive, the 10th Amendment grants to the State Governments or U.S. Citisens, respectively, those Prerogatives not enumerated in and throughout the Constitution. This forms the Constitutional Foundation of the second and third Spheres of Sovereignty.
In Jacobson v. Massachusetts, the Supreme Court solidifies that the Police Power – the Prerogative to enact Laws with the express purpose of maintaining desired standards for the Health, Welfare, Safety, Morals and General Welfare of individuals – is vested, circa the 10th Amendment, in State Legislatures, with the inexhaustive Constitutional Rights of U.S. Citisens acting as a check thereupon.
Constitutionally, then, all Federal Economic Welfare Programmes, are all prima facie un-constitutional. While Congress may exercise Police Power circa the Interstate Commerce Clause (Article I, Section 8, Clause 3), none of the extant Federal Economic Welfare Programmes can be justified circa the Aforementioned Clause.
To that end, Blue States can and should be permitted to establish, maintain, develop and advance whatever Economic Welfare Programmes they desire, leveraging the 10th Amendment in general and the Police Power in particular as the Constitutional basis for doing so. However, the cost of establishing, maintaining and developing Economic Welfare Programmes should and must be borne of the State’s Public Purse.
The Federal Public Purse cannot and should not be used to fund Economic Welfare Programmes for two reasons.
First, and as already stated, as the Constitution does not expressly vest in the Federal Government the Prerogative of providing Economic Welfare, all extant Federal Economic Welfare Programmes are prima facie un-Constitutional.
Second, even in those rare instances where a Federal Economic Welfare Programme would be deemed Constitutional circa the Interstate Commerce Clause, the only Federal Funding that could and should be used to fund such Programmes are Tariffs, Excise Taxes, and Income Tax Receipts from Interstate Commerce Activity. However, the lion’s share of Monies in the Federal Public Purse is Federal Income Tax Receipts collected from Taxpayers across the Union. Unless a Federal Economic Welfare Programme deemed Constitutional circa the Interstate Commerce Clause were to respect the “spirit” of the Apportionment Clause (Article I, Section 2, Clause 3) in allocating said Economic Welfare, using Federal Income Tax Receipts collected from Taxpayers across the Union is un-Constitutional because such Taxes (Taxes collected, whether directly or in-directly, from Taxpayers across the Union) can only be leveraged to Fund Programmes that falls within the Federal Government “Sphere of Sovereignty.”
Liberals would argue that that the phrase “promote the General Welfare” in the Preamble to the Constitution should and must be interpreted to mean that the Federal Government is Constitutionally empowered to engage in Entitlement Spending. The problem with this Argument is that it imposes a contemporary understanding of “the General Welfare.” At the time the Constitution was penned, “the General Welfare” meant “the Common Wealth” and not “Economic Assistance.” To be certain, “the Common Wealth,” as understood during the 18th Century, meant “a Republic founded for the Public Good.” Further, “the Public Good” has nothing to do with Economic Welfare and everything to do with Ordered Liberty, within and centered on the Historical Narrative of the Nation (read: People) in question.
Liberals would further argue that the Necessary and Proper Clause (Article I, Section 8, Clause 18) should and must be interpreted to mean that that the Federal Government is Constitutionally empowered to engage in Entitlement Spending. Here, Liberals fail to apply the full context of Clause 18. When the full context is applied – “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the United States…” – be becomes clear that the Necessary and Proper Clause can only be applied to ensure that the Federal Government has the Authority necessary and proper to wield the Prerogatives expressly vested therein throughout Article I Section 8 in particular and the Constitution in General.
Notwithstanding the Arguments presented herein as to why the Federal Government cannot Constitutionally continue to Administer Economic Welfare Programmes, the Constitution does permit the States to Administer such Programmes. Liberals should, instead of attempting to maintain the current Status Quo of Federal Entitlements, endeavour to offer a full Economic Welfare Suite in those states of the Union that they enjoy Political Hegemony in, leaving the other states in the Union to do as they see fit to serve their residents.
Article I, Section 2, Clause 3: Indirect Taxation
If the U.S. State of California were a fully Sovereign Country, it would be the Planet’s fifth most prosperous Economy.
If Sacramento were permitted to directly Appropriate the the Taxes its residents remit to the Federal Government, she would reserve carte blanche – within the confines of California State Law and the Procedures of the California Legislature, of course – to facilitate such Appropriations as she deems necessary and proper.
The only thing standing in the way of this is the 16th Amendment. Permit me an opportunity to explain.
The Framers absolutely did not intend for Congress to have the Authority to directly tax U.S. Citisens. Instead, Article I, Section 2, Clause 3 originally stipulated that direct Taxes must be Apportioned amongst the states of the Union in accordance with each state’s population. From there, each State’s Legislature would be responsible for coming up with its own formula, independent of the Federal Government, for meeting this tax obligation.
In a Reaction Piece published entitled Socialism Will Come To The United States, I review this very topic of Article I, Section 2, Clause 3 and the 16th Amendment, as follows:
Another GOOD example of how a long – term buttress devised by the Founders is a prohibition on Direct Taxation of Income, as laid out in Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4, of the Constitution.
The Founders intended taxation on the states (Article I, Section 2, Clause 3) and not on the Income earned by individuals (Article I, Section 9, Clause 4). This means that, prior to the early 20th Century, the Federal Government generated income through Tariffs, Apportionment of Taxes on states with respect to each state’s population (with states, in turn, levying Taxes on its Residents), and Head Taxes not based on Income earned.
The 16th Amendment to the U.S. Constitution voids Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4, of the Constitution, thus giving the Federal Government the Power to Tax Individuals directly based on Income earned. It is the 16th Amendment that opened the door to the Federal Government establishing Federal Welfare Programmes, such as Social Security, Medicare and Medicaid, the Housing Choice Voucher Programme (Section 8), and the Special Supplemental Nutrition Programme for Women, Infants and Children (Food Stamps).
Prior to the Advent of Federal Welfare Programmes, Constitutional Law, the Police Power – the Power of each state’s Legislature to enact Laws in the interests of the health, safety, welfare, morals and general welfare of the state’s Residents – kept the Federal Government within its Constitutional remit as without the bounds of regulating, generally speaking, in the interest of the the health, safety, welfare, morals and general welfare of the population at large.
This particular construction devised by the Founding Fathers was to ensure that the Federal Government did not exercise uniform authority over the population at large. This is line with the Sphere Sovereignty established in the Constitution, especially as it relates to the 10th Amendment. The 16th Amendment vastly erodes this key check on the Power of the Federal Government.
While some of what I will discuss below is touched upon in the excerpt of the Reaction Piece included above, I want to take the opportunity to further delve into this.
To be clear, the object of the Article I, Section 2, Clause 3 Tax is to ensure that the people indirectly contributed to the Fiscal Administration of the Federal Government in a way that ensured Accountability, as state governments are “closer to the people” than the federal government – and each U.S. Senator, who originally represented the interests of their respective state’s Legislatures (until the Ratification of the 17th Amendment), acted as a “Fiscal Check” on both the “Popular Element” of the “Why” of Federal Spending (the House of Representatives) and the “How” of Federal Spending (the President).
Had the 16th Amendment not been Ratified, it would have been highly un-likely, though not completely improbable, that the Fractional Reserve Banking System would have come into existence, or even if and where it did, the Federal Government would not have been permitted to accumulate Debt equal to the Union’s Gross Domestic Product.
Fiscal Policy aside, Article I, Section 2, Clause 3 would also act as an effective check on Federal Policy at Large. Had all elements of the Constitutional Fiscal Policy System remained in-tact, the Federal Government would not have been able to marshal the sort and kind of Resources it did to intervene in either of the World Wars, and nowhere near as much of such Resources to maintain, much less establish, a Global Military, Fiscal and Economic Empire.
The method would be simple: since Article I, Section 2, Clause 3 gave states a means to hold the Federal Government accountable for its fiscal decisions, and since the residents of each state would be able to more effectively hold their state lawmakers accountable, public opposition to things like “the War on Terror,” for example, would have likely led to states refusing to pay their Apportionment of Tax to the Federal Government, which, therefore, means that such a Kinetic Conflict, deemed un-justified by the people, would not have the Economic Resources necessary to persist.
Article I, Section 2, Clause 3 means that the Federal Government would be required to justify its spending as part of the Apportionment of Tax. By contrast, the 16th Amendment, which serves as the Constitutional basis for directly imposing taxes on individuals, simply means a dis-organised majority sitting in opposition to the actions of a highly-organised minority.
Without the 16th Amendment, each state would be free to establish a Taxation scheme that works for the residents of the state. Some would argue that such variety already exists, as there is considerable variance amongst the states as it concerns Income Taxes. I would contend that viewing each state’s taxation scheme primarily through the lens of Income Taxes is a direct result of the 16th Amendment and the subsequent introduction of Federal Income Tax.
Taxing Income is socially divisive, as it effectively punishes those who have earned more without extending to such individuals a higher legal standing in the Common Wealth. Taxing Income artificially inflates the value of Labour, as social (and sometimes, legal) pressure exists to ensure that the Cost of Labour increases, even if nominally, at fixed times, without any respect to whether the Value increases. Taxing Income inflates the Prerogatives of the state beyond its Legal Parameters, as the Power to Spend gives the state “Soft Power” that it can leverage to get others to do as it wishes.
Had the original framework as established by the Constitution for the Management of the Federal Public Purse been left in tact, a de facto National Divorce would have been easier to achieve as Federal Spending would encompass only those elements within the Federal Government’s Sphere of Sovereignty.
Article I, Section 3, Clause 1: Indirect Election of U.S. Senators
The Constitution, as originally constructed, establish a Republic.
However, over time, changes have been made to the Constitution, that, when coupled with the implementation of Technological Innovation, and Social, Economic and Cultural “Technologies,” without the confines of the country’s Historical Narrative, has led to the Country operating as a Democracy.
“Republic” and “Democracy” are not synonymous.
A “Republic” is, effectively, a form of Government where the Oligarchy (Legislators, Judges, and the Chief Executive) and the Bureaucracy (Federal Civil Service) are legally – bound to ensure the Defence of the Homeland on behalf of an Independently Educated, Highly Moralistic Electorate, who, being socio-economically self-governing, reserve the Authority to act as the supreme check on the Authority of both the Oligarchy and Bureaucracy.
A “Democracy” is, effectively, a form of Government where the state is given broad leverage to provide socio-economic direction, with the varying factions of a deracinated, degraded and derelict Electorate, vying for control over the political levels of the state.
One way in which the Union has transformed from Republic to Democracy is the United States Senate.
In a Reaction Piece entitled Socialism Will Come To The United States, I review this very topic of Article I, Section 3, Clause 1 and the 16th Amendment, but in the broader Congressional Context, as follows:
A perfect example of this is the construction of Congress. Originally, the membership of the U.S. Senate was to be chosen by the Legislature of each state for a term of six years. This was supposed to act as a check against the U.S. House of Representatives, which was always designed to be directly elected by the Electorate of each District for a term of two years.
The Upper Chamber’s longer term, when combined with the fact that its membership would be indirectly elected by the Electorate of each state, meant, both in theory and in practice, that the U.S. Senate would operate in a less partisan manner, less swayed by contemporary political pressure. The Ratification of the 17th Amendment effectively removed the check that the Founders intended be present in the Legislative Process.
The Lower Chamber’s shorter term, when combined with the fact that its membership would be directly elected by the Electorate of each District, meant, both in theory and in practice, that the U.S. House of Representatives would be more accountable for its policy and political decisions by the electorate on a more stringent timetable.
I’ve decided to add the above excerpt to this Article because it adds a bit of perspective not addressed below.
Originally, the Senators representing each state were to be selected by the state Legislatures. The rationale for this was for the Senate, a body not directly elected, to act as a counter – balance to the House of Representatives, whose members were (and still are) directly elected.
Democracy tends towards mob rule. Despite this, the Founders desired to have one element of the Federal Government be directly elected by the people. Given that the Power to initiate Money Bills, Impeach Federal Officials, and, where the Electoral College cannot, elect the President, this single (at the time) directly elected element of the Federal Government ensures that the people retained adequate leverage in Federal Governance.
Additionally, each Senator, as a representative of the Legislature of a state, would act as representatives of the state and not the people of the State. In a scenario where neither the 16th or 17th Amendments were Ratified, the Senators of those U.S. states where public sentiment is to be gravely concerned about Federal Spending, the House would tackle Federal Spending from its more “performative” (think: “popular”) elements while the Senate focused on the substantive elements of Federal Spending – something that state legislatures, as the recipients of the Apportioned direct Tax, would be keenly interested in.
The Ratification of the 17th Amendment, however, when coupled with how the Electoral College has strayed from its original design, means that, with the exception of the Supreme Court, all the “pre-eminent” features of the Federal Government now exist within the framework of Democracy.
Checks on mob rule be damned.
The Erosion of the Electoral College
I initially wasn’t going to include this as an over-arching pointe in this Article. However, after some consideration, one can make a more cogent argument than I care to make here that the reversion to the original construction of the Electoral College would likely have the effect of the President of the United States exercising, in conjunction with the other over-arching pointes raised herein, considerably less Authority in the direction of the American State.
In a Reaction Piece entitled Socialism Will Come To The United States, I posit:
The last example I would like to offer is the election of the President. The Founders designed a system whereby the states would be free to determine who could vote. States restricted the Franchise to men who could afford to pay a Poll Tax, held ownership in Land, or both. Those men would, in turn, select Electors to the Electoral College. It is those Electors who would convene to elect the President and Vice President of the United States.
This was designed to ensure that the Head of State was not directly elected by the population at large. In other words: the Presidency is now virtually wholly subject in his actions to shifting attitudes of the Electorate and not what is in the long – term best interests of the United States.
We’ve eroded all of the checks built into the system to avoid the Presidency possessing a popular element. First, the Franchise was extended to women. T[hen,] [t]he Franchise was extended to all races. The Poll Tax and Land Ownership requirements were all dropped. Finally, the Electoral College has effectively been turned into a Rubber Stamp, preserving only a veneer of its original function.
Simply reverting the Electoral College back to the actual selection of Electors and then barring members of the Oligarchic Class from serving as Electors would likely have the effect of the President either being selected as a practical matter of compromise by the Electoral College – or, more often than not, the House of Representatives.
Article I, Section 10, Clause 1: Sound Money
If you’ve read any of my Articles on X, you know that my marquee issues are Legal and Illegal Immigration and Monetary Policy.
Nowhere has there been such a flagrant dis-regard for the letter and the spirit of the Constitution than with Monetary Policy.
Article I, Section 10, Clause 1 of the Constitution is clear:
“No State shall…make any Thing but gold and silver Coin a Tender in Payment of Debts…”
In a Monetary Note entitled U.S. State of Ohio Considers Bi-Metallic Monetary Policy, I opined:
Article I, Section 10, Clause 10 of the Constitution of the United States of America is clear: “No State shall…make any Thing but gold and silver Coin a Tender in Payment of Debts…”
U.S. States that wish to be within the spirit of this Constitutional Mandate could justify either a crypto-currency backed by Gold and/or Silver (hence, establishing a Stablecoin) or Fiduciary Currency – paper Currency backed by Gold and/or Silver (hence, the Currency in question acting as a Gold or Silver Certificate).
However, a more “letter-based” compliance view-pointe would, because of the use of the word “Coin,” indicate that only the Commodity – Gold or Silver itself – may serve as the Currency.
Either way, their is, in fact, a pointe of contention exists within in the U.S. Constitution, as Article I, Section 8 of the Constitution gives Congress the Power to borrow Money on the credit of the United States (Clause 2) and to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures (Clause 5).
This means that, Constitutionally speaking, the Federal Government could indeed opt for a system that is at best, slight variant from, or at worse, diametrically opposed to, that of the States. Despite the Constitutional Authority to do so, the Federal Government’s Monetary System has always mirrored those of the States.
Article I, Section 10, Clause 1 was intended to work alongside, not independent of, Article I, Section 2, Clause 3 and the 10th Amendment – with the net effect being a system that could, both in theory and in practice, sustain the sort and type of full-scale Economic Welfare Programme that some U.S. states wish for the Federal Government to establish and maintain.
At first glance, a Sound Money System may seem like a check on the ability of a U.S. state to implement and maintain a full-scale Economic Welfare Programme.
I posit that a Sound Money System would have the effect of ensuring that each U.S. state prioritised spending in accordance with the needs and desires of the residents of the state. State Governments are less able to explain (away) prima facie inefficiency and corruption because it IS easier for the Electorate of a state to hold the State Government to account.
By contrast, the prima facie inefficiency and corruption of the Federal Government often seems Abstract and Obtuse, and thus, can be – and often is – easily obfuscated.
The average member of the U.S. Electorate is no longer Independently Educated, and thus, lacks the Civic and Critical Thinking Skills necessary to navigate the sise and scope of the Federal Government.
Also to be considered is the fact that elected state elected officials reside in their local communities year-round. By contrast, their federal counterparts are resident in the District of Columbia for most of the year, with scheduled visits to their home states throughout the year to fulfill (nominal) requirements.
Some would argue that State Governments are often just as inefficient and corrupt and just as difficult to holde to account as the Federal Government.
My rebuttal to this is that Civic Engagement at the local (think: Towne, Village, Municipality) level is considerably higher than at the federal level, such that even if and where it IS true that a State Government is just as inefficient and corrupt and just as difficult to holde to account as the Federal Government, the fact that Civil Engagement is considerably higher at the local level necessarily means that their is a greater change of accountability, which will, in turn, effect a decrease in inefficiencies and corruption.
Closing Thought
If we permit this Colde Civil War to continue, it will, out of necessity, become un-controllably Kinetic.
Instead, if we’re not yet ready to pursue a de jure National Divorce, we could simply turn the clock back on some of the legal adjustments and innovations we’ve made to the Constitutional Law to effect a de facto National Divorce.
If we fail in this task, an un-necessary number of people, on both sides of the Political Aisle, will suffer – and for no good reason other than neither of the two groups wanted to let the other live as they desired to.
Leave a Reply