If Congress has the power to
by
Matt Giwer (c) 1996

      When the Constitution was written the intention of delegating powers to the United States Government was to give certain specific powers and none other. Today the view is that Congress has any power necessary if there is a good enough cause. This is an important reversal.
      It did not happen over night nor in any easy to follow manner. If it had been easy to follow then the people would not have put up with the changes when the occurred. We would not have the situation we have today.
      One of the larger causes of this change is the power to regulate interstate commerce. Regulate has a very simple meaning, to make uniform, that is to say, to make regular. However that usage today is limited to polite discussions of constipation and its cure.
      That was the original purpose of giving that power to the new government to ensure that commerce between the states was uniform for the purpose of promoting commerce. Today the power of regulation is considered to be the power of prohibition. It is applied to drugs, certain kinds of guns, some types of pornography. Between the beginning and now the power to prohibit alcohol in interstate commerce required an amendment to the Constitution to give government the power to enact and enforce the Volstead Act.
      That is quite a change but then drugs and "assault weapons, and kiddie pornography are good causes. In not stopping the exercise of unconstitutional powers because they are in a good cause (the Supreme Court prefers the euphemism, compelling government interest) the power to prohibit has been ceded to the Government without any limits. A good cause is not a requirement.
      If the government can prohibit a farmer from growing and selling marijuana then that same government can prohibit corn or wheat or cattle. If the government can prohibit the manufacture of certain types of guns it can prohibit the manufacture of all kinds of cars. If the government can prohibit kiddie pornography then it can prohibit newspapers.
      It was not intelligent or wise to cede that power to the government but we have.
      Another power we have given to the government is the power to redistribute income on the basis of need. It is not clear that the same principle does not apply to blood or duplicate organs. "Brother can you spare a kidney"?
      There are many explanations for this ultimate power we have given our government. For a clear example look at the 1994 gun control law. It was passed based upon a rigged poll and the president acknowledged that in his State of the Union address. And yet a law based upon a rigged poll (read fraud but unfortunately not criminal) is still the law.
      So if a misrepresentation of public hysteria is the justification for the continued enforcement of a law just where does a "good cause" end and another "good cause" begin? You may like this year's good cause but have you always liked all of the good causes?
      You may have liked the good cause of the war on drugs but did you like the good cause of the war on poverty? Or vice versa. When there are mutually disliked good causes and both become law just who benefits?
      The basis of law can never be a good cause or a compelling government interest. In every case it can only be what is written and only what is written. If it is to continue to be our current criteria it can become anything.
      Another example are the RICO laws. They were passed to deal with organized crime and support for it was raised solely upon those grounds. Over the years since that law was passed I have watched many criminal and civil prosecutions but I can not remember even one prosecution of organized crime under the RICO laws. But they were passed in a good cause but pardon me, like them or not, the pro-life folks do not look like Don Corleone, the Godfather.
      The powers we have ceded to the US government are greater than we would readily admit were we able to look 50 years ahead in what we ceded and are ceding. If, when we permitted the government to create the interstate highway system we had known it would grant the power to regulate the drinking age in the states would we have done it? If that power had been presented at the time would we have accepted it without prohibitions of such things?
      And if we had know that giving the government the power to regulate literal snake oil in the past would result in it ability to regulate vending machines today and coffee and chocolate in the future (on the same grounds) would we give it that power?
      This is the way to run a government by royal authority be its excuse science or the omen found in the entrails of a chicken. It is not the excuse or the justification but the power itself. We should never grant the government the power regardless of the reason for the exercise of that power.
      And the reason is that if that is done entrail reading witch doctors and media grabbing ex-scientists become more powerful than the people. But if "experts" are to have more power than the people then why do we continue with the vote when there are "better" means of governance? But that does appear to be the road our government has embarked upon.
      Why? Because the oldest trend is not being addressed in this revolution. The law says "the XXX agency shall create regulations ..." and that is abrogating legislation to the experts. Speaking as a retired government "expert" that is very stupid. You want me to make regulations? You may trust me but then there is the entire regulatory system within my agency and if there is any semblance of what I proposed and the regulation it is because I worked by butt off to make it so. There is no requirement nor reward for doing that. And you trust that I care enough? You live in a fantasy world.
      The rule is and was that if the power is not explicit then it does not exist. The very idea that Congress can delegate rule making is a violation of the separation of powers. But this is an old complaint that has not been acknowledged by our "compelling government interest" Supreme Court.
      Is there a solution? I have none short of violent revolution if the voting revolution of Gingrinch does not succeed. It will be a battle of principle and not one of being the best of comparable nations. The claim of having the least tyranny is still a tyranny.