Thursday, May 22, 2014

The Constitution Gives The Federal Govt. TOO MUCH Power: The Anti-Federalist View

Governments are instituted among men to safeguard their inalienable rights, not to sell them off to the highest bidder. The US Constitution and its appended Bill of Rights is widely regarded as the most perfect exemplar of that desideratum. However, our Constitution was, and remains, a compromise reached between the men of their day.

We’ve noted the Federalist papers as the repository of Constitutional intent to which our Judiciary are compelled for clarity and guidance. However, our Constitution being a Compromise; there was also an Anti-Federalist view.

These Anti-Federalist concerns went into creating our Constitution’s Contract limiting Government power over the Individual Citizens, …...

Let’s visit the major points of Anti-Federalist contention. The following summation is from William Wirt’s biography of Anti-Federalist Patrick Henry.

“The chief objections to the Constitution are reducible to the following heads.

I: That it was a consolidated, rather than a confederated government: that, in making it so, the delegates at Philadelphia had transcended the limits of their commission: changed fundamentally the relations which the states had chosen to bear to each other: annihilated their respective sovereignties: destroyed the barriers which divided them: and converted the whole into one, solid empire. To this leading objection almost all the rest had reference, and were urged principally with the view to illustrate it and enforce it.

2: The vast and alarming array of specific powers given to the general government, and the wide door opened for an unlimited extension of those powers by the clause which authorized Congress to pass all laws necessary to carry the given powers into effect. It was urged, that this clause rendered the previous specification of powers an idle illusion; since, by the force of construction arising from that clause, congress might do easily everything and anything that it chose, under the pretense of giving effect to some specified power.

3: The unlimited power of taxation of all kinds: the states were no longer to be required, in their federative characters, to contribute their respective portions towards the expenses and engagements of the general government; but congress were authorized to go directly to the pockets of the people and sweep from them, en masse, from north to south, whatever portion of the earnings of the industrious poor the rapacity of the general government, or their schemes of ambitious grandeur, might suggest. It was contended that such a power could not be exercised, without just complaint, over a country so extensive, and so diversified in its productions and the pursuits of its people: that it was impossible to select any subject of general taxation which would not operate unequally on the different sections of the union, produce discontent and heart burnings among the people, and most probably terminate in open resistance to the laws: that the representatives in congress were too few to carry with them a knowledge of the wants and capacities of the people in the different parts of a large state, and that the representation could not be made full enough to attain that object, without becoming oppressively expensive to the country: that hence taxation ought to be left to the states themselves, whose representation was full enough to obtain that object, without becoming oppressively expensive to the country: that hence taxation ought to be left to the states themselves, whose representation was full, who best knew the habits and circumstances of their constituents, and on what subjects a tax could be most conveniently laid. Mr. Henry said that he was willing to grant this power conditionally; that is, upon the failure of the states to comply with requisitions from Congress: but that the absolute and unconditional grant of it, in the first instance, filled his mind with the most awful anticipations. It was resolved, he saw clearly, that we must be a great and splendid people; and that in order to be so, immense revenues must be raised from the people: the people were to be bowed down under the load of their taxes, direct and indirect; and a swarm of federal tax gatherers were to cover this land, to blight every blade of grass, and every leaf of vegetation, and consume its productions for the enrichment of themselves and their masters: it was not contended, he supposed, but that the state legislature, also, might impose taxes for their own internal purposes: thus the people were to be doubly oppressed, and between the state sheriffs and the federal sheriffs to be ground to dust: on this subject he drew such a vivid and affecting picture of those officers, entering in succession the cabin of the broken-hearted peasant, and the last one rifling the poor remains which the first had left, as is said to have drawn tears from every eye.

4: The power of raising armies and building navies, and still more emphatically, the control given to the general government over the militia of the states, was most strenuously opposed. The power thus given was a part of the means of that aggrandizement which was obviously meditated, and there could be no doubt that it would be exercised: so this republic whose best policy was peace, was to be saddled with the expense of maintaining standing armies and navies, useless for any other purpose than to insult her citizens, to afford a pretext for increased taxes, and an augmented public debt, and finally to subvert the liberties of her people: her militia too, her last remaining defense, was gone. “Congress”, said Mr. Henry, “by the power of taxation – by that of raising an army and navy – and by their control over the militia – have the sword in one hand, and the purse in the other. Shall we be safe without either? Congress have an unlimited power over both; they are entirely given up by us. Let Him (Mr. Madison) candidly tell me, where and when did freedom exist, when the sword and purse were given up from the people? Unless a miracle in human affairs shall interpose, no nation ever did or ever can retain its liberty, after the loss of the sword and the purse.

The unlimited control over the militia was vehemently opposed, on the ground, that the marching militia from distant states to quell insurrection, and repel invasions, and keeping the free yeomanry of the country under the lash of martial law, would, in the first instance produce an affect extremely inimical to the peace and harmony of the union; and in the next, harass the agricultural body of the people so much, as to reconcile them, as a less evil, to that curse of nations, and bane of freedom, a standing army: - and secondly, this power was opposed, on the ground, that Congress, under the boundless charter of constructive power which it possessed might transfer, to the president the power of calling forth the militia, and thus enable him to disarm all opposition to his schemes.

5: The several clauses providing for the federal judiciary were objected to, on the ground of the clashing jurisdictions of the state and federal courts; and secondly, because infinite power was given to Congress to multiply inferior federal courts at pleasure, a power which they would not fail to exercise, in order to swell the patronage of the president, to their own emolument, and thus enable him to reward their devotion to his views, by bestowing on them and their dependants those offices which they themselves had created.

6: It was contended that the trial by jury was gone in civil cases, by that clause which gives to the supreme court appellate power over the law and the fact in every case; and which thereby enabled that tribunal to annihilate both the verdict and the judgment of the inferior courts: and that in criminal cases also, the trial by jury was worse than gone, because it was admitted, that the common law, which alone gave the challenge for favour, would not be in force as to the federal courts; and hence a jury might, in every instance, be packed to suit the purpose of the prosecution.

7: The authority of the president to take command of the armies of the United States, in person, was warmly resisted, on the ground, that if he were a military character, he might easily convert them into an engine for the worst of purposes.

8: The cession of the whole treaty-making power of the president and senate was considered as one of the most formidable features in the instrument, in as much as it put in the power of the president and any ten senators, who might represent the five smallest states, to enter into the most ruinous foreign engagements, and even to cede away by treaty any portion of the territory of the larger states: it was insisted, that the lower house, who were the immediate representatives of the people, instead of being excluded as they were by the constitution from all participation in the treaty making power, ought at least to be consulted, if not to have the principle agency in so interesting a national act.

9: The immense patronage of the president was objected to; because it placed in his hands the means of corrupting the Congress, the navy, and army, and of distributing, moreover, throughout the society, a band of retainers in the shape of judges, revenue officers, and tax gatherers, which would render him irresistible in any scheme of ambition that he might mediate against the liberties of his country.

10: The irresponsibility of the whole gang of federal officers (as they were called) was objected to: there was indeed, in some instances, a power of impeachment pretended to be given, but it was mere sham and mockery;  since, instead of being tried by a tribunal, zealous and interested to bring them to justice, they were to try each other for offences, in which, probably, they were all mutually implicated.

11: It was insisted that if we must adopt a Constitution ceding away such vast powers, express and implied, and so fraught with dangers to the liberties of the people, it ought at least to be guarded by a Bill of Rights; that in all free governments, and in the estimation of all men attached to liberty, there were certain rights unalienable – imprescriptible – and of so sacred a character, that they could not be guarded with too much caution: among these were the liberty of speech and of the press – what security had we, that even these sacred privileges would not be invaded? Congress might think it necessary, in order to carry into effect the given powers, to silence the clamours and censures of the people; and, if they meditated views of lawless ambition, they certainly will think so: what then would become of the liberty of speech, and of the press?

It’s important to remember the views of these seemingly anarchistic firebrands, because, …. today’s Empire of Eugenic, Political Medicine can’t even bring itself to conform to the COMPROMISE of Inalienable Rights ceded away by the Anti-Federalists codified into our existing Federal Constitution.

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