The Bill of Rights v. the Clauses

The battle lines are being drawn.  The fields of battle are varied, but they share one commonality: whether they concern federal abortifacient mandates, gun control, or the health mandate, all represent conflicts between enumerated Constitutional rights and the big three clauses - the Supremacy, Commerce, and Necessary and Proper clauses of the Constitution.

A number of states have initiated legislation to reassert their rights under the Tenth Amendment to nullify federal legislation that conflicts with those rights.  The typical federalist answer is that the big three clauses trump the rights of the States or the People.

Here is my response to appeals to the Supremacy, Commerce, and Necessary and Proper Clauses: 

"The Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.  

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, THAT FURTHER DECLARATORY AND RESTRICTIVE CLAUSES SHOULD BE ADDED: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.  

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution..." (all caps added). 

 
The stated intention of the Bill of Rights is to prevent the abuse of power by the federal government by restricting the very clauses to which many in Congress have appealed. Simply stated, the Amendments that make up the Bill of Rights SUPERSEDE the Supremacy, Commerce, and Necessary and Proper Clauses - regardless of whether federalist-minded judges agree with that truth. The Bill of Rights was ratified by a veto-proof two-thirds majority of both houses of Congress, which was absolutely necessary because Washington was opposed to many of the provisions it contained (it is interesting to note that the Preamble of the Bill of Rights says nothing about the President SIGNING it, only that it was ratified by a two-thirds majority of both houses of Congress and by a three-quarters supermajority of the legislatures of the States). Why? Because the provisions of the Bill of Rights  would have served to diminish the absolute power of the federal government. George Washington's circular letter to the governors of the States and his retirement address both declare his unswerving belief that this would be detrimental to the future of the country, that an absolutely supreme, all powerful, centralized government to which the States and the People were in absolute subservience was the only way to insure our future. We can see where Washington's beliefs have taken us as our Constitutionally-enumerated rights continue to be eroded by a power-hungry government that represents its own interests and agenda.

Remember: the United States was created by the States.  The principle established in the Bible is that the potter has power over the clay.  It is inappropriate for the clay to say to the potter, "Why have you made me this way?"  So it is supposed to be in the relationship between the States and the federal government.  The States created the federal government.  The States, therefore, retain the power to determine the extent to which federal authority is allowed to go.

Reasons to Consider the National FairTax Proposal...

In the debate regarding the national FairTax, proposed as a replacement for federal personal and corporate income taxes, gift, estate, capital gains, alternative minimum, Social Security, Medicare, and self-employment taxes, it would appear that, while it isn’t bliss, ignorance is certainly rampant.

First, the FairTax is progressive.  At the beginning of each month, each legal household receives a tax refund in anticipation of the coming month’s expenditures called a “pre-bate.”  The amount of this check is based on the federal poverty guideline and insures that the first $22,500 of spending is exempt from taxes.

Second, the FairTax is a graduated tax, based on a household’s level of spending.  Households that fall below the poverty line pay no taxes, while a family of four spending at the $58,280 level would have an effective tax rate of 11.5%, compared to a 17% effective rate under the current system; the more that is spent, the more that figure would increase to a maximum of 23%.  So contrary to what several have asserted, that middle or lower class earners will bear the brunt of this taxation, this is clearly not the case.

Third, the FairTax, by doing away with corporate income taxes, helps once again draw business to the United States because of the lower cost to conduct business. It does away with the need to use tax abatements as a means of attracting new companies to our country - a means of attracting business that is inherently prejudiced against existing companies and amounts to the federal government picking and choosing winners and losers.  It also provides an unheard-of incentive for US-based corporations operating overseas to bring home the more than $13 TRILLION in foreign-earned profits that now sit in foreign banks.  Can you begin to imagine the impact such an infusion of funds would have on our economy?  The jobs that would be created or returned to this country?  Under the current system, as explained by former Michigan Governor Jennifer Granholm in response to a reader's question regarding Michigan's Film Tax Credit in the November 2, 2009, edition of Time Magazine, "You can't give tax credits to everybody, because somebody's gotta pay for them."  By shifting the tax burden to consumption of both goods and services rather than income, we can incentivize all businesses, making it more likely that they will choose the US as their base of operations, which, in turn, will also increase the amount of spending that takes place as more Americans go back to work.

Fourth, the FairTax does away with the one thing that truly forces the middle class to shoulder the brunt of the tax burden under our current system -- loopholes.  An individual with a good tax attorney or CPA is able to avoid the lion’s share of their tax obligation because of the myriad of loopholes that exist in today’s tax system - loopholes created BY the wealthy FOR the wealthy.  Anyone who can afford to pay, which, by definition, excludes most middle and lower incomel earners, can shift their tax obligation to those who cannot afford such help.  The argument has been made that such a shift is unfair and immoral, but the only system that truly addresses this inequity is the FairTax because of its complete lack of loopholes.

So to those who are convinced that our traditional tax system holds the answers, although the condition of our economy would seem to indicate otherwise, I would encourage you to take a moment to check out the data for yourself.  $22 million have been invested in this research, and it is yours to study at http://www.fairtax.org.