A Compact Renewed

The Mayflower Compact

The Mayflower Compact

In the name of God Amen. We whose names are underwritten, the loyal subjects of our dread sovereign Lord King James by the grace of God, of Great Britain, France and Ireland, king, defender of the fait, etceteras.

Having undertaken, for the glory of God, and advancement of the Christian faith and honor of our king and country, a voyage to plant the first colony in the northern parts of Virginia, doe by these presents solemnly and mutually in the presence of God, and one of another, covenant and combine our selves together into a civil body politick; for our better ordering, & preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony:  unto which we promise all due submission and obedience.

In witness whereof we have hereunder subscribed our names at Cape Cod the eleventh of November, in the year the reign of our sovereign lord King James of England, France, and Ireland the 18th and of Scotland the 54th, Anno Dominie, 1620.

This is the Mayflower Compact. Now, I’d like to point a couple of things out here.

• What are they doing? They are combining themselves together into a civil body politick.” In other words, they are forming a government.
• Why are they doing it? For our better ordering & preservation and furtherance of the ends aforesaid. The ends aforesaid, that is, “for the glory of God, and advancement of the Christian faith and honor of our king and country .” Do you get that? Not only was God part of the equation, it was the furtherance of his kingdom that was the primary objective of the body politick they formed! Remember that next time they tell you we’re not a Christian nation.
• Who did it? Who formed the government? God? The King? The governor? No. The People formed the government. On purpose. And once they formed it, they pledged to it all due submission and obedience. They migrated from a “dread sovereign” – willing to risk life and limb, as many of them eventually did – and before even setting foot on Cape Cod they formed yet another government. So, what was the difference between that which they fled and that which they formed? Just that – they formed it. The government they created was justified and legitimate precisely because it was they the people that formed it.  John Quincy Adams later remarked that it was “perhaps the only instance, in human history, of that positive, original social compact, which speculative philosophers have imagined as the only legitimate source of government.”

The Mayflower Compact. 1620. Wow.

I point all this out because our republic was founded by we the people, and that concept even in 1776 was not new and novel to the colonists. It was a concept that was instinctive to even the earliest pilgrims, and is no less legitimate now a source of government than it was then.

The Revolutionary War’s Root Cause

Better War Through Deficit Spending

Now, let’s move forward in time to the “root cause” of the revolutionary war. Many can claim that the root cause of the war was the Boston Tea Party and the quartering of soldiers in its aftermath. Some may point to the Stamp Act. Some may point to the Declaration of Independence. I would submit to you that those were not the cause, they were just symptoms.

No, I’d say the root cause of the war was something we all know far too well today.

It all started with a young officer (some say captain, some say major) that got into an inconsequential skirmish that turned out not to be so inconsequential after all – it led to the French and Indian war in the late 1750s. It was an expensive war, and England was ill equipped to equip for it, but they won anyway – with the use of a novel new device that allowed them to outfit their men:  deficit spending.

Good for them. But at the conclusion of the war in 1763 (and this is one thing that makes us different), they, Parliament, felt compelled to find a way to pay back the huge debts they’d accumulated during the war. So, they tried to tax the colonies. It made logical sense – the war was fought over here, and the colonists could very well pitch in to help pay for it (no need to mention the payment in lives we’d already made). And Americans were not generally averse to sending money, when asked.

But Parliament wasn’t asking – Parliament was taxing, and we had a problem with that. It’s one thing for the governor to tax a colony because after all they had representation in the colony. It was another thing entirely for a far-away Parliament in which the colonies had no representation to do the same. That was unacceptable. So, we said no, they said yes, two if by sea, shots fired, we win, they lose, game over. Welcome to America.

But it all started with a parliament using deficit spending to win the war. The lesson? Deficit spending is bad for you.

The officer who fired the shot that started the war that led to the spending that led to the taxation that led to the Revolution? George Washington. I’ll pause for a moment for the lunatic fringe to shout out “see – it was a conspiracy all along!”

The Constitution’s Drafting and Ratification

Fast forward again, this time to 1787, Philadelphia. We’ve won our independence as thirteen individual states – and in this sense, the word “state” is used in a way that would confuse many Americans today. The King didn’t capitulate to the United States, but rather to thirteen independent states. We – and the world – viewed Virginia, and Massachusetts, and New York not just to be peers with each other, but peers with the rest of the states in the world. States like France. And Spain. And England.

Oh, for the good ole days.

Anyway, we’re in Philly, and we’re trying to clean up the mess that the Articles of Confederacy has left us. The Confederacy was formed in a time where we were very leery of anything akin to a national government – an entity that could grow out of control and become tyrannical. The states were jealous of their newfound standing on the world stage and not wont to surrender power unnecessarily to a third party. At the same time, however, they recognized that the cooperation and unison that enabled them to defeat the greatest military power on the face of the earth would also be necessary to secure themselves against external threats. So some kind of federation – much akin to today’s EU – was in order.

The problem was, the Articles of Confederacy left Congress so weak as to be entirely ineffective in accomplishing its stated aims of security. This was a problem Washington, who’d gone more than one night without necessary provisions from Congress – was keen to see not be repeated.

Nationalist turned Republican

So, what to do. The gentlemen from Virginia – led by James Madison (Jefferson was overseas at the time, and Patrick Henry wanted nothing to do with it) had in mind to not just amend the Articles of Confederation, but to throw them out entirely. And, this not being his first rodeo, he aligned the appropriate political powers to ensure that it was the Virginians – the largest colony in the federation – who framed the debate with what they called the Virginia Plan.

What ensued over the summer was a political discussion that embodied three philosophies – two of which we know all too well today. The monarchists, led by Hamilton, the Nationalists, led by Madison and Washington, and the Federalists, among whom was George Mason. Kind of like the Kennedys, Democrats, and Republicans of today. In the end, though Madison did succeed in framing the debate, the Virginia Plan that called for a national government was rejected.

A few observations here:

• First, the idea that there was this great consensus amongst a group of like minded men that formed the Constitution is an illusion.
• Second, for three different factions to get anything done, it requires compromise. As such, the Constitution is a product of compromise. And compromise is very nearly never perfect. It’s time we acknowledged that and accepted it for what it is. Even the framer’s acknowledged it – that’s why there’s an amendment process.
• Third, of these three factions, two of them fairly closely aligned to each other when it came to the role of the national or federal government –both the monarchists and the nationalists thought the general governments’ role should be far stronger, and the states far weaker as a consequence – than what the federalists would ever accept.

Having said that, the federalists, at least in the short term, won the day on more than their fair share of points. Not, however, to a level acceptable to George Mason, who left Philadelphia without signing the Constitution. A telling sign…

So, a campaign ensued in which the Constitution’s supporters, known as Federalists including Hamilton and Madison, and the anti-Federalists (which, back in the day were known as republicans, not anti-Federalists) fought for the hearts and minds of the people. Eventually, the Constitution was ratified by 8 states, and at that point it became a case not of “do we like it?” but “do we want to be left out?” Virginia made it official by becoming #9. They even made it complete with a Virginia Kickback – better known as a promise to carve the nation’s capital out of parts of Virginia and Maryland…better known now as Washington, D.C.

Elections Have Consequences

So, Washington was elected our first President. But now you know that he considered himself a nationalist. That fact cannot be overstated, because it was Washington who had the unique opportunity to shape the entire executive branch, and he surrounded himself with federalists, who were almost universally wedded to being either monarchists or nationalists. Put another way:  the administration of our first federal government was populated almost entirely by people who didn’t consider themselves republicans (Jefferson being a notable exception).

Not only did he get to populate the executive branch, but he was unique in his opportunity to shape the judiciary. Now, country may have changed since the 1700s, but politics really hasn’t. And though Washington sat through a Constitutional Convention in which the ideas of a national government were debated and defeated, Washington was at heart a nationalist, and as such he appointed nationalist judges to the bench. That, really, is profound. Think about not four or five liberals on the bench, but nine.

So, why is the discussion of the court important? Because although it was republicans that won the day in Philadelphia with the framing of the Constitution, it was nationalists who managed, through the judiciary, to pervert it to their own ends. Elections matter, even if you’re electing a hero.

The Commerce Clause

Washington’s successor, John Adams, was also a nationalist, and he too had the opportunity to appoint justices. His most important appointment came at the end of his term, with the appointment of Chief Justice John Marshall. And that is where the action of a single man over 200 years ago has a long-reaching impact on today’s congressional debate, and it has everything to do with the Commerce Clause.

While I could spend significant time here detailing just why John Marshall was ill-suited to the task at hand, I’ll simply focus on one case:  Gibbons vs. Ogden.

• The situation:  The state of New York had granted a 30 year monopoly on the navigation of steamboats on NY rivers to the inventor of the steamboat, Robert Fulton and his business partner. Such a monopoly would necessarily exclude all others with competing steamboats from operating, including Gibbons, who had been granted a license by Congress to navigate waters.
• The question:  does New York have the right to exclude out-of-state ferry operators from navigating their rivers?
• The answer: according to Marshall, was no.  Article I, Section 8, Clause 3:  “To regulate commerce…among the several states…” gives congress the power to regulate interstate commerce.

The problem was that in order to reach this conclusion, one had to define “navigation” as “commerce.” As in, say, “I’m going to ‘commerce’ my way through the crowd…” Yes. Just flows right off your tongue, doesn’t it?

Without stretching the meaning of commerce in this way, Congress (and the federal government) had no enumerated power allowing them to interfere in a state’s affairs like this. So, Marshall stretched and found something that many claim simply wasn’t there.

The ramifications of the decision are important, because it extended the meaning of commerce in a very elastic way. Subsequent courts would restrict the reach of the commerce clause, but it wouldn’t be permanent. When in the 1930s the court began to strike down a succession of New Deal programs instituted by FDR based on a narrow interpretation of the commerce clause, he threatened to pack the court with his own justices. The mere threat caused two of the courts members to suddenly reverse their position vis a vis the commerce clause, and it was restored to the elasticity it enjoyed under Marshall. So much for separate and equal branches.

As a result, the Supreme Court became a rubber stamp on the actions of an out-of-control, progressive socialist. Pray that history doesn’t repeat itself. Pray hard.

So, with an elastic commerce clause, is there validity in arguing that congress over-reached its authority with the implementation of the health care bill? Put another way, can health care or health care insurance be considered commerce?

My opinion is that, based on the line of reasoning above, the court is likely to find that the answer is yes. Look at it this way:  obtaining health care insurance requires an exchange of money for the service provided. That service is likely to entail other goods or services that, at one point, crossed state lines. More to the point, it is unlikely not to entail other goods or services that at one point crossed state lines. Virtually everything in this day and age – MRI machines, pacemakers, scalpels, even needles, is made in one state (or country) and crosses into another. Since health insurance impacts those goods and services, health insurance – even health insurance purchased from a local provider by someone who has never set foot out of Ohio – could, for purposes of the interstate commerce clause, be considered subject to  congressional regulation. I don’t like that, but it’s a logical train of thought.

Having said all that, I believe that the case could still be made that, supposing Congress does have a right to regulate the health insurance companies, there is no enumerated power granting them the right to compel US citizens to purchase healthcare, or, to provide funds to be used by the federal government in subsidizing other people’s healthcare, the 17th Amendment not withstanding. That is, there is no enumerated power allowing them to compel citizens to create commerce – by virtue of forcing the purchase of health care – where otherwise there might be none.

I do not know that we’d win, but I believe that the case can be made, and it is a stronger case than an argument that health insurance isn’t a form of commerce.

General Welfare

So, with the commerce clause out of the way, we turn to the General Welfare clause in determining whether within its penumbras it grants congress the power to compel you to buy health insurance.

Let’s start with articulating the two places in the Constitution where the term “general welfare” exists. First, in the preamble:

We the people of the United States, in Order to form a more perfect union, establish Justice, insure domestic tranquility, provide for the common defence, 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.

My position is that preambles, from a legal sense, are nothing more than nice-to-haves. That is, they may provide insight as to what the founders were thinking, but they in and of themselves don’t carry the force of law. Incidentally, this isn’t the only preamble in the Constitution. Another excellent example is the 2nd Amendment, where the italicized portion below is the preamble leading up to the actual amendment (this version of the amendment, without two commas, is the version that was distributed to the states for ratification):

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

With that aside complete, let’s move on to the second instance, in Article I, Section 8:

The Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

Now, the Constitution enumerates the powers that have been delegated to it by the people. Furthermore, the 10th Amendment (some would say superfluously, including Madison, who wrote it) explicitly calls out that those powers not enumerated are reserved to the states, or the people. The question before us is this:  does “provide for the…general welfare” amount to an enumerated, though highly ambiguous, power that can be used to justify anything remotely connected to the welfare of the people?

The answer, I believe, is no. I turn to Federalist #41, where James Madison – himself a nationalist (at the time), so no friend of the Republicans – to buttress my argument:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it [...

…] But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

So, for those of you who are just waking up after that grammar lesson, here’s the point he’s making:  If you consider Article I, Section 8 in its entirety, the extent of the phrase “general welfare” is clear. Section 8 is basically divided in three sections:  here’s why we’re giving Congress power, here’s what the powers are, and here’s how you can go about exercising those powers. Article I, Section 8, is included here in it’s entirety, complete with helpful color coding to identify the three sections of the Article:

The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

To further make the point:  you cannot very well separate the enumerated powers from the preceding generalization of those powers, because they are all part of the same sentence. Granted, that is one awfully long sentence, but it does not qualify as a run-on in the classic sense and its structure remains straightforward to those with the intellectual honesty to recognize it.

It doesn’t say “and universal healthcare and universal higher education for all.” Not in there. Nowhere.

The questions are:  will the courts agree? How long will it take? And what will be in place in the meantime?

I have no idea.

The Power Lies with Us

The solution, ultimately, lies with us. It is still a representative government formed by the consent of the people of the several states, and we still have an opportunity to repeal the bill, since we still have elections. But it’s a long road, and requires patience, resolve and principles.

• First, we have to have a good showing in November. We will, but don’t delude yourself into thinking that we’ll end up with Republican majorities in either house. It’s a lot to ask. Having said that, I think it’s safe to say that the filibuster-proof majority will be a thing of the past come January, and that’s hugely important.
• Second, even if in our wildest dreams we succeed in gaining control of both houses, that simply stops the bleeding; it doesn’t heal the wound. Congress couldn’t pass a bill to repeal the abomination that Obama would sign. So we must have patience.
• Because finally, in 2012, we get the next opportunity to replace a Marxist socialist with a patriotic American. But we must choose our nominee carefully – John McCain need not apply. It is not enough to win the presidency back. We must win it back with principles.

It took over 100 years for the progressives’ dark stars to align for this moment. We must understand that the fight will never end, and it may very well take 100 years to undo the damage they’ve done. We must understand that we may fail, but we must try.

Our nation’s ancestors arrived in 1620 on the Mayflower pledging to form a government to the glory of God, only to have so many of them wiped out by disease, attack, and brutal weather.

Our nation’s founders pledged in 1776 their lives, their fortunes, and their sacred honor. Too many of them gave all so that liberty could flourish.

Now today, we, our nation’s keepers, are being asked to make sacrifices that, frankly, pale in comparison to those of the forefathers. Our lives are a pittance compared to theirs.
Will our numbers be great enough? Our resolve strong enough? Our patience long enough? And our faith deep enough?

Are we willing to form our own compact?

Advertisement