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March 09,
2009 Since Congress is using a clause in the body of Constitution, not the Sixteenth Amendment, to tax and plunder, I recommend you take a few minutes and read: "The Federal Government is using the General Welfare Clause to Steal your Money" because it provides a basic overview of the history and controversy surrounding the General Welfare Clause. In this article, I will expand the debate on the General Welfare Clause and show that Congress has totally perverted the Founders intent concerning this Clause. This will include an alternative to the FairTax proposal to repeal the Sixteenth Amendment. The Power to Tax and Spend Congress' power to impose ALL taxes, irrespective of what you call them, is Article I, Section 8, Clause 1 of the Constitution. This Clause grants Congress 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." Congress can only impose taxes, including income taxes, which fall under the umbrella of the word taxes, "to pay the debts and provide for the common Defense and general Welfare of the United States." The power of taxation and the purposes of taxation are enumerated in this Clause. Definitions of "General" and "Welfare" In order to accurately examine the general welfare provision, it is necessary to establish the meaning of the words "general" and "welfare." "General. 1: involving or applicable to the whole. 2: involving, relating to, or applicable to every member of a class, kind or group." "Welfare. 1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity." The word welfare is derived from the words "well" and "fare" and means a "state of faring well" or "well being." When the Framers used the word welfare in the Constitution they were using it in this context. They were not referring to government give-a-way programs for the poor, disabled, disadvantaged, etc. These programs were virtually unknown to the Framers and would have been classified, in the language of the day, as a form of "poor relief." From the above, the common definition of the general welfare phrase, as used by the Framers in the taxing clause is: "the whole group's well being." Thus, this Clause grants Congress the power to tax and spend for the "whole group's well being." In my opinion, this is where most analyses of the General Welfare Clause fall short because they fail to identify the "group" being referenced and tie it to the structure of government established by the Constitution. NOTE: the reference to the "general Welfare" in the preamble of the Constitution also means "the whole group's well being" and refers to the same "group" as the taxing clause. The United States If you review Article I, Section 8, Clause 1 again, you will see that it clearly identifies the "group" that is the object of the federal government's power to tax and spend. That group is a group of States called the "United States of America," i.e., the States united. The key to understanding the General Welfare Clause, like the rest of the Constitution, is found in the words "United States." These words, as they appear in the founding documents, do not refer to a geographical territory or a single nation. The phrase "United States" was the name of the union that was established between the several States when they adopted the Articles of Confederation. (See Article I of the Articles of Confederation) When the Framers drafted the present Constitution, they retained the term because the document was a continuation and expansion of the old constitution. Thus, the words "United States" specifically refer to the States in their collective capacity: not the people in their individual capacity as comprising one nation. As stated by Alexander Hamilton in Federalist Essay No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [Emphasis not added] The taxing and spending clause is a component of a general provision of the Constitution. The General Welfare of the United States When these two phrases are put in proper context, they show the General Welfare Clause grants Congress the power: "[t]o lay and collect taxes to provide for the well being of the States in their united or collective capacity." If the Constitution were a compact or union between the American people, as comprising one nation, and they were the object of the powers delegated to the federal government, then it would have been absurd to reference the States, in their united capacity, as the object of the general welfare. And if the Constitution had been established for the well being of the American people, as comprising one nation, then that same people would have been the "whole group" referenced in the Constitution. Who are "We the People?" In past articles, readers have challenged me when I made the statement that the Constitution is a compact or contract between the States. They always get fired-up by the "We the People" phrase in the preamble of the Constitution. Since I made this assertion again, I will clarify the issue. If you review the preamble, you will find one of the two references to "the people" in the body of the Constitution (yes the "people" are only mentioned twice). Since the word "United" is an adjective, it can be removed. When the preamble is read with the word "United" removed, it shows that the people of the States established a constitution for States. Thus, the people referenced in the Constitution are the people as States. Under the American system of government, the people as individuals created political entities called States. They empowered these entities to represent the individual interests of the people within the borders of each State. Subsequently, it was determined by the people as States that another government was necessary to represent their collective interests as States. Following the Articles of Confederation, the people of each State re-authorized their State to unite with other States under a compact called the "Constitution for the United States of America." This limited union between the people as States established a second level of government called the "government of the United States," i.e., the "government of the * * States." NOTE: Shortly after his death in 1850, John C. Calhoun's essay entitled "A Discourse on the Constitution and Government of the United States" was published in book form. In describing the federal government, Calhoun, who had been Vice President of the United States from 1825 to 1832 wrote the following: "It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." NOTE: In his classic work, "The Federal Government, Its True Nature and Character," which was re-published in 1863, Abel Upshur provided the following analysis of the preamble: "The phrase is, WE, THE PEOPLE OF THE UNITED STATES, not the people of AMERICA. The very phrase shows the Federal Union to be a government of STATES, and not the act of the people of all America, as a consolidated body. The people of the United States in the preamble of the Constitution, has the same meaning as 'the people of the several States.'. The qualifying adjective 'united' is annexed to the word STATES, and not to the word 'people.' It is precisely the same meaning as the phrase 'Lex Etas Unis' in the French language, i.e., the States united." Only the People as States are Recognized Contrary to popular belief, the American people, in their individual capacity, are not recognized in the Constitution and have absolutely no political power under the Constitution. The Founders established a federal system of government where all political power is vested in the people as States. If you doubt that, then I challenge you to read the Constitution and find a provision in the body of that document that states otherwise. The quickest way to prove this is to read Article V and Article VII of the Constitution. Pursuant to Article V, the Constitution can only be amended by a vote of the people as States. Article VII states that the Constitution was established between the people as States. The American people in their individual capacity are not a party to the Constitution and cannot amend it. NOTE: this is why the people living in the District of Columbia do not have representation in Congress. The District is not a State. The States are only United within the Delegated Powers In Federalist Essay No. 82, Hamilton stated: "The principle established in a former paper teach us that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head." Under our constitutional system of government there are two types of powers: reserved powers and delegated powers. The States exercise the reserved powers individually and the delegated powers collectively. When the States exercise the reserved powers, they are known by their individual names, i.e., New York, Virginia, etc. When the States exercise the delegated powers, they are known by their collective name, i.e., "The United States of America." When the States adopted the Constitution they agreed to unite specially - not generally. As stated by Alexander Hamilton in Federalist Essay No. 32, the Constitution would only establish a "partial union" between the States. Under the system of government established by the Constitution, the States are only united for the limited purposes enumerated in the Constitution. In other words, the States are only united within the scope of the powers delegated to their federal government. NOTE: within the reserved and delegated powers there are parallel powers like the power to tax, etc. The Correct Interpretation of the General Welfare Clause Since the States are only united within the limited powers delegated to their federal government, and Congress can only tax and spend for the General Welfare of the States in their united capacity, there can only be one correct interpretation concerning this provision of the Constitution: Congress can tax and spend to provide for the well being of the States collectively provided the appropriation is general and limited to instances wherein the Constitution empowers Congress to act for the general welfare of the United States. Not only is this interpretation in total harmony with the structure of the Constitution, but it also conforms to the principles of limited government and enumerated powers. But it also leaves the federal government with the means necessary to fund every exigency requiring money where the Constitution empowers Congress to act for the general welfare of the United States of America. NOTE: Since the phrase "well being" is a nebulous term, how could Congress provide all of the United States with something that is ambiguous or indefinable? The term requires either a precise definition or reference to other provisions in the Constitution to give it meaning. If members of Congress had the subjective power to determine what constitutes the general welfare irrespective of whether that determination comports with the structure of government established by the Constitution, then their discretion at any given moment, not the Constitution, is the measure of the taxing and spending power of Congress. This would turn the Constitution on its head and transform the federal government from a government of limited enumerated powers into a government of subjective powers. Constitutional Taxation and Appropriation under the General Welfare Clause From a constitutional perspective, Congress' power under the General Welfare Clause is governed by 4 rules: * The general welfare of the United States is simply one of the three purposes of taxation. This Clause does not grant Congress a separate legislative power. * Congress cannot tax and spend for the general welfare generally. Its power is confined to the States in their united capacity. * The appropriation of money from taxation must be general (apply to the whole). Congress cannot tax and spend for local or particular projects within an individual State or States. * Congress cannot tax and spend to do things not authorized by the Constitution. Its power is limited to instances wherein the Constitution empowers Congress to act for the general welfare of the United States. The majority of all taxation and appropriation under this Clause is unconstitutional because one or more of these rules are not followed. For example. At the present time, Congress imposes a general gasoline tax of 18.4 cents per gallon throughout the United States. When Congress writes a spending bill and a powerful member of Congress wants to buy some votes from the folks back home, he places an earmark in the legislation to have a 3 million dollar hiking trail built in his home State or congressional district. The money for the project is appropriated from the general fund where the gasoline taxes were deposited with other taxes. Thus, taxes from the general fund were used to finance a local or particular project within an individual State. This is unconstitutional. The project was not for the welfare of the States in their united capacity. This is unconstitutional. Since building hiking trails in the States is not within the structure of government established by the Constitution, the appropriation failed this constitutional test also. In other words, Congress cannot impose a general tax throughout the United States, put the money in the general fund of the United States, appropriate money from the general fund of the United States, and then spend the money for a local or particular project within an individual State or States. This type of spending is blatantly unconstitutional because all appropriations must be general. NOTE: if the people in their individual capacity were the object of the General Welfare provision, then Congress' power would be even narrower because in order to meet the general test (apply to the whole), each appropriation of money would have to be for the well being of all Americans. Alternative to Repealing the Sixteenth Amendment As I stated in "The FairTax and The Sixteenth Amendment," the FairTaxers want to repeal the Sixteenth Amendment and replace "all federal income and payroll based taxes with a national retail sales tax of 23%." Even if the Amendment had granted the federal government the power to impose income taxes, as the FairTaxers believe, repealing the Amendment would not solve the core problem facing the nation: unconstitutional taxation and spending through the General Welfare Clause. The FairTax would simply give Congress a new way to usurp power under this Clause of the Constitution. The target of the FairTaxers should be Article I, Section 8, Clause 1 because they could kill two birds with one stone. If they could succeed in getting an amendment to the Constitution that would return this Clause to its original intent with defined limitations to prevent subjective interpretations, unconstitutional taxation and spending would vanish and take most federal income and payroll based taxes with them. That would include their plan for a so-called FairTax. Conclusion We are on the verge of an economic collapse because the Congress of the United States has been using an unconstitutional interpretation the General Welfare provision to consume the wealth of the nation and drive us into debt. Their interpretation deletes words, disregards words, changes the meaning of words, and is absent of any of the limitations expressed by the Founders. In short, Congress claims it has the unlimited power to tax and spend so long as it cites the General Welfare Clause as the constitutional authority for the legislation. Congress' solution to the economic problem it created by violating the General Welfare provision is to impose new taxes and increase existing taxes to fund more of the same unconstitutional spending that caused the crisis in the first place. If the
American people will not take a stand against the unconstitutional theft
of their money and the economic servitude that will result for them and
their children because Congress refuses to comply with the Constitution,
then they are prepared to tolerate anything but liberty.
Your
comments and feedback are welcome!
Some other, related reading: The Flawed Second Amendment Debate The Second Amendment and the Preamble to the Bill of Rights Another Look at the Wording of the Second Amendment Tell me why the States needed the so-called "Collective Right" Second Amendment? The Second Amendment is an Individual Right A Question For The Supreme Court
Now Available! See Editor's review here. "The Bill
of Rights Does Not Grant You Any Constitutional Rights" $10.00-includes shipping and any applicable sales tax. P.S.C.S. Email any questions concerning the book/booklet to Bob at-govtnitwit [at] yahoo.com
Robert
Greenslade focuses his writing on issues surrounding the federal government
and the Constitution. He believes politicians at the federal level, through
ignorance or design, are systematically dismantling the Constitution in
an effort to expand their power and consolidate control over the American
people. He has dedicated himself to resurrecting the true intent of the
Constitution in the hope that the information will contribute, in some
small way, to restoring the system of limited government established by
the Constitution.
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages. |
Please see the bottom of the page for Bob's book offer. Archives The 2004 Declaration of Independence The Constitution and YOU Part 1 The Constitution and YOU Part 2 The Constitution and YOU Part 3l A Question For The Supreme Court The Second Amendment Question before the Supreme Court is Constitutionally Flawed and Dangerous It's Time To Break Out The Torches And Pitchforks! Constitution to Hillary, Obama and McCain Congress Makes the Laws not the President Do the American People really want Liberty and Constitutional Government? The Real ID Act proves the Federal Government is Not the All Powerful Oz There is no Legal Requirement for an American Citizen to have a Social Security Number The American People have become Servants to Government Employees A Republic, if you can Keep It Is Obama Ineligible to be President? The Game Changing Play John McCain and the Republicans Need to Win the Election Lawsuit Challenging Obama's Qualifications to be President Dismissed just as Predicted A Tenth Amendment Commission is not the Answer There Is a "New" Declaration of Independence, Mr. President The FairTax and The Sixteenth Amendment The Federal Government is using the General Welfare Clause to Steal your Money Complete Archives for Robert Greenslade
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