Publius-Huldah's Blog

Understanding the Constitution

The Balance of Powers Act – How People Are Destroyed For Lack of knowledge

By Publius Huldah

Our own Ignorance is destroying us.  Mark Twain wrote in his autobiography:

“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.”

That is what has been going on in our Country for a very long time. Our “intellectuals” can’t think; our “scholars” parrot each other; the self-educated fixate on idiotic theories; no one studies original source writings; and The People jump on every bandwagon that rolls by.

In order to write intelligently on our Constitution, one needs to have studied and understood the original source writings of our Framers.  No matter what your educational level, if you don’t know what is in our Declaration of Independence and federal Constitution; and if you are not familiar from personal study with The Federalist Papers, The Kentucky and Virginia Resolutions of 1798, Madison’s Report on the Virginia Resolutions (1799-1800), and Madison’s Notes on Nullification (1834), among other original source writings, then you have no business writing about these issues.

But we are flooded with rubbish about the Constitution put out by law professors, history professors, Ph.Ds. of this or that, Heritage Foundation, those with no academic qualifications, and politicians. And none of them know what they are talking about!

And The People read their rubbish and believe it.

One of many such writings which plague us is the Balance of Powers Act  (“BOPA”). 1

The BOPA reflects a justified frustration with the innumerable usurpations by the federal government during the last 100 years.

But it also reflects such fundamental misunderstandings of our Founding Principles that it misstates or ignores them.  Accordingly, it undermines our Constitution.

There are 6 major problems with the BOPA:

1. It wrongly presents the federal government as a party to the U.S. Constitution.

Throughout the BOPA, the following refrain is recited:

 “The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]

That refrain elevates the federal government (“the United States”) 2 to the status of a “party” to the compact (Constitution)!

But the federal government is not a party to the Constitution! WE THE PEOPLE created the federal government when we ordained and established The Constitution. The federal government didn’t even exist until the Constitution was ratified.

Accordingly, our Framers understood that the federal government is merely our “creature”, and is not a “party” to anything. In Federalist No. 33 (5th para), Alexander Hamilton writes:

“… If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [boldface mine]

Thomas Jefferson writes in his Draft of the Kentucky Resolutions, 8th Resolution:

“… they [The States] alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, …” [emphasis mine]

James Madison writes in his Report on the Virginia Resolutions (1799-1800) under the 3rd resolution:

“It…[is]…a plain principle, founded in common sense…and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. … The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; … ” [boldface mine]

Hamilton, Jefferson, and Madison are saying that because the States alone are “the parties” to the compact, they are the final authority to decide whether their “creature”, the  federal government, has violated the compact.   THIS is why States have the natural right of nullification!

But by asserting that States and the federal government are in a “compact” together, the BOPA elevates our “creature” to the status of a sovereign party right up there with The States!  Thus, it undermines the “plain principle” that the States alone, as the parties to the compact, have the right to decide, in the last resort, whether the federal government has violated the compact! 3

2. It wrongly suggests that each State (after the original 13) has a different Constitution

Here is another wrongheaded aspect of the same refrain in BOPA:

“The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]

The BOPA makes the absurd suggestion (which is piled on top of the untrue assertion that the federal government is a party to the compact) that every State admitted after the original 13, has a different “compact” with the federal government, depending on the year of admission.

So instead of one Constitution applicable to all States, we have (according to the BOPA) some 37 “compacts” (Constitutions) [50-13= 37].   Not only is this absurd, it perpetuates the lie spewed by progressives that the meaning of the Constitution evolves.

When Tennessee was admitted to statehood on June 1, 1796, she was admitted “on an equal footing with the original states, in all respects whatsoever”.  The U.S. Constitution has the same force in Tennessee and in the same manner as if Tennessee had been one of the original 13 States.  See, “An Act for the admission of the State of Tennessee into the Union”.

3. It misstates the original intent of the “interstate commerce” clause.

 Section 2 (3) of the BOPA asserts that the interstate commerce clause (Art. I, Sec. 8, cl. 3):

“…was meant to empower Congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines…”

That is demonstrably false, and no authorities are cited.

We look to The Federalist Papers to learn the original intent of the clause. Federalist No. 22 (4th para), Federalist No. 42 (9th &10th paras), Federalist No. 44 (at 2.), and Federalist No. 56  (4th & 5th paras), explain the two purposes of the “interstate commerce” clause:

♣To prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and

To permit the federal government to impose duties on articles of commerce and imports.4

 

4. It doesn’t properly set forth the original intent of the “necessary and proper” clause.

Section 2 (4) of the BOPA asserts that the necessary and proper clause (Art. I, Sec. 8, last cl.), was:

“… a limitation of power under the common-law doctrine of “principals and incidents,” which restricts the power of Congress to exercise incidental powers. There are two (2) main conditions required for something to be incidental, and therefore, “necessary and proper.” The law or power exercised must be 1) directly applicable to the main, enumerated power, and 2) it must be “lesser” than the main power.”

That is neither helpful nor authoritative.

The Federalist Papers explain the original intent of this clause. It merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2nd para); and thus the clause is “perfectly harmless”, a  “tautology or redundancy” (No. 33, 3rd para).  Madison says the same in Federalist No. 44, at 1 (under his discussion of the SIXTH class).

In plain English, the clause merely permits Congress to make laws to carry out the enumerated powers of the three branches of the federal government.

For example: The duty of some of the federal courts created by Art. I, Sec. 8, cl. 9 is to conduct trials (in the types of cases Art. III, Sec. 2, cl. 1 permits them to hear).  Trials involve parties and witnesses. They must be required to tell the Truth! So, it would be necessary and proper for Congress to make laws against perjury in federal court.

 

5. It misstates the original intent of the “general welfare” clause.

Section 2 (5) of the BOPA asserts that the general welfare clause (Art. I, Sec. 8, cl. 1) requires:

“… that congress only enact laws which serve all citizens well and equally. When James Madison was asked if this clause were a grant of power, he replied “If not only the means but the objects are unlimited, the parchment [the Constitution] should be thrown into the fire at once.” Thus, we re-establish that this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States, showing no favor to any race, creed, color or socio-economic class.”

That is not true, and no authorities are cited in support of the assertion that the general welfare clause means that Congress must treat all social classes the same.

The limitation imposed by the Constitution on Congress’ powers is that laws made by Congress must fall within the scope of the enumerated powers delegated to Congress. 

The term, “general welfare”, as used in our Constitution, has nothing to do with treating people of all races, creeds, and social classes the same.

Our Framers understood the “general welfare” (as applied to States) to refer to:

“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government.” (Webster’s 1828 Dictionary)

They saw that this condition could be brought about by the federal government we created in our Constitution:  A federal government divided into three parts, with each part having checks on the other parts; and with only enumerated powers delegated to each of the three parts.

Accordingly, the Preamble to our Constitution says:

“WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” [boldface mine]

And that portion of our Constitution which introduces the list of most of the enumerated powers delegated to Congress over the Country at Large (Art. I, Sec. 8, cl 1) says:

“The Congress shall have Power … to … provide for the common defense and general Welfare of the United States…” [boldface mine]

Immediately thereafter follows the enumeration of 15 specific powers delegated to Congress over the Country at Large. In essence, these 15 powers authorize Congress to:

♣Provide for military defense and international relations and commerce;

♣Establish a uniform commercial system (bankruptcy laws, a money system based on gold & silver, weights & measures,  mail delivery & some road building, patents & copyrights); and

♣Make laws for naturalization of new citizens.

Our Framers understood that the “general Welfare” – the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government – would prevail with the federal government of narrowly defined and enumerated powers created by our Constitution! 5

Section (6) (A) of the BOPA then goes on to assert that the commerce clause, general welfare clause, and necessary & proper clause were amended and limited by the 2nd, 9th, and 10th Amendments!

Rubbish! Not only is no authority cited for this bizarre assertion, it is because the author lacks understanding of the original intents of the three clauses that he believes they needed to be “fixed” by amendments!

6. It ignores the Essential Characteristic of our Federal Constitution.

The essence of our federal Constitution is that it created a federal government of three branches, with each branch having checks on the other two branches. Furthermore, it delegated only specific, narrowly defined powers to each branch.

James Madison writes in Federalist No. 45 (3rd para from end) of the “few and defined” powers delegated to the federal government:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]

What We have lost is the knowledge that Our Constitution delegated only “few and defined” – enumerated – powers to each branch of the federal government. For complete lists and explanations of the powers our Constitution delegated to each branch, see:

♣Congress’ enumerated powers [Art. I, Sec. 8, cl. 1-16 is not the complete list]

♣The president’s enumerated powers

♣The federal court’s enumerated powers

Any American of common sense and ordinary understanding is capable of fully understanding the scope of the powers delegated by our Constitution to Congress and to the President. 6

This is one of the keys to Restoration of our Constitutional Republic.

The BOPA contains a number of other statements which are confused and erroneous.

Conclusion

Our Framers were exquisitely educated in Logic, Judeo-Christian values, political philosophy, and statecraft. The American People of our Founding Era had the Wisdom and Humility to listen to our Framers.

Let us once again show that same Wisdom and Humility.  Listen to Our Framers.

Endnotes:

1 The BOPA is the product of The Constitutional Justice Division of the North American law Center.  As grand as those titles do sound, the BOPA does not reflect the light cast by minds schooled in law or statecraft. Furthermore, the writing is confused and some of the sentences undiagrammable.

2 Throughout our Constitution, the “federal government” is referred to as “the United States”.

3 Parties to compacts have mutual rights and obligations. The federal government has no “rights” – it has only those few delegated powers WE enumerated in the Constitution. The People pre-existed the Constitution. The States pre-existed the Constitution. Since the federal government didn’t exist until the Constitution was ratified, it can’t be a “party” to it! It is impossible to understand our Constitution unless one understands that the federal government is merely a “creature” of the Constitution – and as such, is completely subject to its terms.

4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance?

5 The progressives say the general welfare clause gives Congress power to pass any law they say promotes the “general welfare”.

James Madison refutes that misconstruction in Federalist No. 41 (last 4 paras).  See also: Does the general welfare clause of the U.S. Constitution authorize Congress to force us to buy health insurance?

The BOPA’s erroneous assertion that the clause means that laws passed by Congress must “serve all citizens well and equally”, could easily morph into the perversion that Congress may do whatever it likes as long as its laws are fair to all races, creeds, and classes.

But the constitutional standard is that acts of Congress must fall within the scope of the enumerated powers delegated to Congress. We must not blur that clear line with our own fabricated feel-good theories.  READ the last 4 paras of Federalist No. 41!

6 Some knowledge of law and litigation is necessary to fully understand the enumerated powers of the federal courts. But if our People would make the modest effort necessary to learn the enumerated powers of Congress and the President, they would become

a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No. 16   [Hamilton] next to last para)

Then they would be able to distinguish between constitutional and unconstitutional acts of Congress and the Executive Branch. PH

March 25, 2013

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March 25, 2013 - Posted by | Balance of Powers Act |

23 Comments »

  1. Reblogged this on Gail O'No and commented:
    Lack of knowledge is Destroying this Country.

    Like

    Comment by gailono | August 7, 2013 | Reply

  2. Just 3 technical questions, PH:

    1) When you cite the Federalist Papers and you give numbers of the paras that you cite, you never count the opening sentence (which begins every FP), “To the People of the state of New York”, as a paragraph. Doesn’t it count as a para?
    2) Hamilton and Madison often use capitalizations in the FP. If one were to write an article citing those FPs in which they use capitalizations, and the publisher said in his submission guidelines “Leave the original spelling and capitalizations”, would the author of the article nonetheless have to add – like you usually do – before quoting an FP para that “all capitalizations are Hamilton’s/Madison’s”? Or would there be no need to do so if the publisher said to leave capitalizations as they are in the original text?
    3) When one cites a part of a para from an FP, rather than an entire para, what marks (if any) should one use to signifiy that parts of a para before, or after, the quotation, have been omitted?

    (…)

    […]

    Like

    Comment by Zbigniew Mazurak | June 11, 2013 | Reply

    • I understand that journalists have style manuals which address such things. I haven’t read theirs.

      Lawyers had style protocols – those are the ones I use.

      1) I’m not insisting that one NOT count the salutation as a paragraph. But it seems to me that it is the “salutation”, not a part of the message.
      2) I add “[caps are Hamilton’s]” to make it clear to my readers that Hamilton – not I – is the one who emphasized the words. There is so much sloppy writing these days – so I err on the side of clarity.
      3) In legal writings, when we quote from the middle of a para, we did it the way I do it in the papers I write now:

      “… now is the time for all good men to repent…”

      Like

      Comment by Publius Huldah | June 12, 2013 | Reply

      • Hear, Hear and repent I do need too to.

        Like

        Comment by Noah | June 12, 2013 | Reply

        • Well, we all need to! But we better do it PDQ.

          Like

          Comment by Publius Huldah | June 12, 2013 | Reply

  3. My first trip here was about two years ago. I keep coming back. This blog is extremely important and I have guided more than one person here.

    Thank you for lending clarity where so many people are full of s@#$ and pretending to know what they are talking about. It is good to see others interested and commenting here. Thank you for all you do- sans the advertisements and partisan gibberish. Muah.

    Like

    Comment by Frankenstein Government | May 26, 2013 | Reply

    • Thank you! Made my day!

      Like

      Comment by Publius Huldah | May 27, 2013 | Reply

  4. It startled me several months ago when I heard some one say the federal government is not the government. WE THE PEOPLE are the government.
    We’ve strayed in thought, knowledge and action.

    Like

    Comment by tannngl | March 26, 2013 | Reply

    • Well, that is not entirely accurate.

      WE THE PEOPLE are the original fountain of political authority (Federalist Paper No. 22, last para).

      With that authority, WE ratified the federal Constitution and thereby CREATED the federal government. It is our “creature” and may lawfully do only what WE gave it permission to do in The Constitution.

      But thru the years, WE permitted it to become our master. And now, we will have hell to pay.

      Like

      Comment by Publius Huldah | March 26, 2013 | Reply

      • Thanks for your reply Publius. Indeed we have hell to pay. I know I was asleep at the wheel as I raised my family and worked, trying to do it all. Our’ creature’ took over our lives while we weren’t looking.

        Like

        Comment by tannngl | March 26, 2013 | Reply

  5. I have gotten several emails about the BOPA in the past; and each time I sensed that something was not quite right. Thank you for clearing this up for me and confirming that I was correct in my first impression.
    God Bless you, PH!
    Vicki

    Like

    Comment by Vicki Becker | March 25, 2013 | Reply

    • God bless you too! And thank you for your discernment.

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply

  6. This is a remarkable piece of thinking. Even without knowing you, I can know that you are a child of God and pursue Him prayerfully. I can’t help but remember the Ecclesiastes inasmuch as those who leave God from their lives have become deaf, dumb and blind. Shall our leaders go to their deaths asking the question, “What was life all about? What does life mean?” Thank you for your Wisdom.

    Like

    Comment by Donna Bullock | March 25, 2013 | Reply

    • You are right! I am a child of God who asks my Father in Heaven all the time for guidance, for the right words, for insight and understanding, how to explain things to others, and for His Will for me.

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply

  7. Dear Publius,

    Again, great work, what would we do without you? You say that the people read, they don’t, if they did things would be much better. My objective is to gather the facts and then use the proper words to motivate the people. I don’t have the words, which is most frustrating when I pretty much know what is wrong and how to fix it. I pray for the words, because only God has them. No I am not nuts, but I am an Economics/Marketing guy and that is close to witchcraft sometimes. Did you ever read my last polemic?

    God Bless You.

    Andrew

    Like

    Comment by Andrew C. Wallace | March 25, 2013 | Reply

    • The last paper of yours I read was the one in early February at News with views. Passionate!
      How do we get the American People to agree to shrink the federal government down to its constitutional size?
      And thank you, dear, as always.

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply

  8. From the very first time I looked at The BOPA it didn’t seem right to me. I copied it kept reading it. I was yet uncomfortable with it. I know only enough to know if it seems not so right. If one doesn’t know deep details it is not right to start with challenges…. That is now settled for me. PH has clarified this and I am comfortable with her effort here and very thankful for it. I say, “Hallelujah” for PH Clarity. One who has the background and expertise for such as She is the one we need to go to and trust. However, I thank GOD folks are standing against the evil before us. Come under the same tent. Band together of one mind to save Our Constitutional Republic.

    Like

    Comment by Noah | March 25, 2013 | Reply

    • Thank you Noah!

      When the Ignorant write legislation, we are in trouble; and when ignorant people who don’t understand it jump on the bandwagon, then it gets dangerous.

      Now you see how those bad amendments to the U.S. Constitution got ratified! People are STUPID!

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply

      • Hear, Hear, Mam. Hear, Hear.

        Like

        Comment by Noah | March 25, 2013 | Reply

  9. Hi PH

    AMEN!

    Now, a good question is just who is building a case that the Federal Government is a separate entity, that I suppose, just grew out of the ground somewhere, and then, why would they make that case when it is quite obviously false.

    The only persons I hear who assert that are, libertarians. They somehow arrive at the idea that government is a separate existing entity rather than one WE gave life to…

    My hunch is that that purpose is to establish grounds for destruction / revolution of the government we have in the Constitution…but, that’s me.

    Funny, they kinda said that:

    “In this video, using Ron Paul’s own words from his books and interviews, it is shown that Ron Paul’s goal is voluntaryism. He adopts limited-government positions and appeals to the U.S. Constitution as part of a long-term strategy for achieving a completely free society, absent any State.” ~Graham Wright, Ron Paul is a Voluntaryist.

    Hmmm….reckon the Founders ran into the same things, arguments, etc we are encountering today? My guess is that they did, for the dynamics are eternal or at least perpetual.

    Betcha that is why Paine called his essay “Common Sense.”

    God bless

    MK

    “A constitution is a thing antecedent to a government; a government is only the creature of the constitution.” ~Thomas Paine

    A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either. ~Thomas Paine, Rights of Man [1791-1792]

    Like

    Comment by sapientstudy | March 25, 2013 | Reply

    • The author of the BOPA I wrote about is an ignorant man from Tennessee. He doesn’t understand what he is saying. I am sure of that. He just heard somewhere that the States and the federal government are in a compact together, and he repeated it. He doesn’t understand the significance of the statement; and is too conceited to learn.

      But his version of the BOPA was introduced into this session of the Tennessee legislature!

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply

  10. Thanks Publius for making it plain to read and understand. …   You making it clear will perhaps in some way alert the American people and wake them up.  You are a blessing!  Barbara🙂

    Like

    Comment by B. Bruchmann | March 25, 2013 | Reply

    • Thanks, B.
      This was introduced into the Tennessee Legislature!

      Like

      Comment by Publius Huldah | March 25, 2013 | Reply


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