From talk show hosts to taxpayer defense organizations, a lot of people out there are justifiably sick over how our government is operating. Many of them have proposed new Constitutional Amendments, either to reign in the power of the federal government, or to force it to exercise its constitutionally delegated powers and responsibilities. It occurred to me while driving (I do a lot of thinking and praying behind the wheel), that the things these groups propose are why the Constitution was written in the first place – to define yet limit the powers of the federal government.
Congress, presidents past and present, and the Supreme Court have disregarded their Constitutional responsibilities and limitations on their authority for over a century. If they fail to respect the Constitution and all the Amendments currently included in it, any proposed new Amendments, even if they got past 290 Representatives, 67 Senators and 38 state legislatures, will do nothing to restore one iota of our God-given freedoms.
In the year 1919, the 18th Amendment to the Constitution was ratified, which stated:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
While some states had already adopted alcohol prohibition within their borders, this enacted a ban, albeit an unenforceable one, nationwide. In 1933, the 21st Amendment repealed the 18th, returning the issue of alcohol to the state and local governments.
While the federal government had the honesty to admit the need for a Constitutional Amendment for alcohol prohibition in the early 20th century, it did not show that same honesty in the latter half. The “War on Drugs” of the past several decades has raged on, without the tedium of having to get 2/3 of both houses of Congress and 3/4 of the states to agree to it, with about as much success as its cousin from a century ago. Approve or disapprove of legalization, it’s impossible to justify why we needed to amend the Constitution for alcohol, but not for other drugs, and the feds have simply disregarded the limits on their power.
How our federal government acts regarding drugs is exactly how it acts regarding taxes. The issue of a federal income tax arose a number of times throughout the nineteenth century, and one was even passed during the Civil War. In the 1895 case, Pollock v Farmers Loan, the Supreme Court handed down a 5-4 decision declaring the income tax a form of direct taxation, prohibited at the time by the US Constitution. The 16th Amendment was ratified in 1913 (though some dispute that) establishing a federal income tax in America. Many well intentioned groups, such as Americans for Fair Taxation, have pushed for a repeal of the 16th Amendment. Ending the federal income tax once and for all is a great idea, but even the elimination of this tax, which both parties love to use to sling mud at each other, will require more than amending the Constitution.
Fast forward nearly a century to the current occupant of the White House, President Barack Obama, who signed into law the Affordable Care Act, also known as Obamacare. After numerous states and organizations sued to overturn this 2,000 page, massive intervention into the health insurance system, they were handed defeat in the 2012 decision, National Federation of Independent Business et al v Sebelius, Secretary of Health and Human Services et al. In a stunning feat of legalistic gymnastics, Chief Justice John Roberts, a “conservative” Bush appointee writing for the majority, upheld Obama’s signature legislation, arguing that the ACA was constitutional, not under the Commerce Clause, but under the taxation power of the US Congress. The fines for not purchasing insurance considered a tax; in other words, the government can tax you not only for doing something, but for doing nothing. Can one truly argue this same Supreme Court that has so twisted the wording of the Constitution will strike down the continued income tax in the absence of the 16th Amendment?
The answer to restraining the federal government lies not in replacing the current bums with a new set of bums in Congress and/or the White House, not in getting “the right people” onto the Supreme Court, not in suing the federal government or another march on DC. The answer does not even lie in pushing for another Amendment for the Feds to ignore. But rather, it lies in the states and localities repeatedly slapping back the overreaching hand of tyranny. Like an old school nun to an unruly student, let us take the yardstick of nullification across the knuckles of our naughty federal government until they have learned to behave.
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