However, there was a reason why the Constitution was written to be a document of negative rights. It has often been said that power corrupts and that absolute power corrupts absolutely. Our Founding Fathers knew this only too well so they crafted a system of rules and regulations that would prevent those in government from exercising dictatorial power and thereby have the means to take away the freedom of its citizens. The way the Founders did this was by limiting the power of our elected officials to very specific issues and then spreading even that power over three branches of government rather than concentrating it in one person or group of people.
But, as with any law, there are those who will try to find ways around the spirit and intent of it. Their first preference is to find a legal way to do this, but if that is not possible they will seek to find any way they can that will help them accomplish their goal. This is especially true of those who want power but feel thwarted by the Constitution which prevents them from gaining more than they already have. Therefore, they actively seek to find ways to subvert our supreme law.
There are a number of ways they do this but before looking at them it is first necessary to recognize that people do have honest differences of opinions on how the Constitution is to be understood and interpreted. Even among those who seek to follow the original intent of the Founding Fathers, there can be disagreements and, if that is true of them, it is even more so between those who take a strict view of interpreting the Constitution and those who say it should be interpreted more broadly.
These differences of opinion can be honestly held by people who sincerely want what is best for all Americans but there are those whose feel constrained by what the Constitution says and actively seek to find ways to circumvent its words so they can do what they think is in the best interest of the country. When this is the case their arguments are merely disguises to mask their intention to gain the extra power the Constitution prevents them from having. It is people like these who cannot be honest and open with the American people about their objective so they deliberately seek to persuade the voting public into giving them the power they want through the use of plausible sounding but deceitful arguments.
The question, of course is, how do we tell the difference between those who honestly believe what they say and those who say things they don't really mean? The answer lies more in understanding correct principles of governing than it does in weighing the value of each proposal. The best way to illustrate this is to look at some example of how those in the past have sought to change the Constitution through the use of persuasive arguments.
One way they do this is to claim allegiance to the Constitution by speaking of it as a venerable and important document to our society while, at the same time, either saying it needs to be modified to fit today's circumstances or seeking to change it while claiming they are actually upholding the traditions contained in it.
As example of this can be found in a speech President Franklin D. Roosevelt gave at a gridiron dinner in 1935. He said, "In our maritime history we constructed a great ship and called it the Constitution. We put in it the best timbers that could be found and we constructed it according to the best plans and experiences of that period. We sent it forth to do battle. It was crowned with success and achieved wonderful victories. We came to revere it and even to have an affection for it. We still do for what it has accomplished in its day but no one would be foolish enough to send it out to fight even a tugboat….So with the Constitution of the United States. We revere it and have an affection for it because of the principles it reflects. But, as times change, the Constitution, too, must change."
Yet a year later as he ran for reelection he told a crowd of people in Arkansas, "The Constitution was the best instrument ever devised to strengthen self government at all levels. Under its broad purposes we intend to and we can march forward believing that the overwhelming majority of Americans believe, that the Constitution is intended to meet and to fit the amazing physical, economic, and social requirements that confront us in this modern generation."
Although these two statements may seem to contradict one another, FDR saw no contradiction in them because what he believed was that the Constitution, as it stands today, can be interpreted, not as it did in the days of old when it was written, but in light of our modern needs. When he spoke of "natural rights" and the rights of the individual he meant that every individual had a natural right to work (i.e. belong to a union), to have a retirement (i.e., Social Security), affordable housing (i.e., Home Owners Loan Corporation), freedom from unfair business practices (i.e., NRA - National Recovery Act), and a good salary (i.e., minimum wage). To him these were rights that every individual was entitled to receive and therefore introduced the idea of government run entitlement programs to the American people.
Yet, even though he talked about "individual rights" what he really meant was "collective rights" or the rights that belonged to groups of people in general such as blue collar workers, women, minorities, farmers, etc. He argued that it was morally right and therefore virtuous to tax the rich to help out these disadvantaged classes of people.
He also sold this concept to the American public by liking these programs to an insurance policy where people would pay into it through their taxes and then receive benefits from the government when they needed it later in life. He said that through this system these programs would be self-sustaining and therefore perpetually solvent. And it was through arguments like these that people were persuaded to believe that the more power they gave to their government the more rights they received in return.
FDR further argued that men who are constantly in need of caring for their own support are subject to uncertain conditions of misfortune and therefore are not truly free while those who can rely on the government to provide for their old age and help them through hard times are truly free.
By using the language of the Constitution but assigning different meanings to its words FDR was able to make it sound like he was endorsing the very principles that our Founding Fathers believed in while actually changing everything they stood for. In this way he was able to gain more power for himself through acts of legislation passed by Congress rather than by gaining those powers through Constitutional amendments.
The real purpose FDR had in mind with using these and similar arguments was to circumvent the safeguards in the Constitution that limited what he could do. However, no matter how reasonable such arguments may sound, it is a safe rule to follow that whenever anyone seeks to increase the influence of the Federal government over the lives of its people, no matter how convincing it may seem, it is violating both the intent and text of the Constitution.
The Constitution can only be legally changed by the ratification of three-fourths of the state legislatures or through holding a new constitutional convention but this can be a long process whose outcome is never certain, so another method that has been used to subvert the Constitution is attempting to arbitrarily or hastily change the Constitution either through the amendment process or by a legislative act of Congress or by the President through an executive order.
What the Founding Fathers sought to do when they drafted our Constitution was to make sure that the public had sufficient time to think through any change being proposed to the Constitution. The proverb, "Haste makes waste" was a folly they wanted to avoid therefore they designed a system that would give the American people every opportunity to hear all sides of an issue and thoughtfully consider its consequences before approving any change.
On the other hand, those who want to change the Constitution for personal reasons can't afford to wait very long because they might be voted out of power before the changes take place so they are anxious to push through their ideas as quickly as they can with as little debate as possible. But to do this they must short-circuit the constitutional process.
They may argue that it took our Founders four months to decide on the entire Constitution therefore, four months to decide on just one change is more than enough time. The falsity of this statement is that those who wrote the Constitution met together and debated one another five hours every day, six days a week, for three and a half months, spending over 4,000 hours officially discussing every aspect of the newly proposed government. They also spent considerable time unofficially talking to one another after each day's session had ended. Furthermore, this was the only issued they debated. They weren't involved in deciding any other pieces of legislation.
And then, once our Founders had approved the new Constitution, all thirteen states had to hold a convention of their own to ratify it. To rush through one change or amendment in four months affords the public very limited time for debate, which is exactly what those who propose such a time limit are hoping for. In that way legislation can be pushed through in haste before anyone has had ample time to really think it through.
This is what happened during the first 100 days after Franklin Roosevelt took office in 1932. The large amount of new legislation he proposed was so quickly written, with hardly any thought to its legality, and then passed in such haste that it was confusing to understand even to those who had to administer the newly created programs. As a result, the new laws created as many problems as they solved and many of them were later declared unconstitutional by the Supreme Court.
However, the greater threat to this kind of danger comes from those who take the long view and are willing to chip away at the Constitution slowly, a little at a time over decades. In this way their motives don't seem as obvious but the long term results are just as devastating to our freedom. The only way to thwart this kind of threat is for Americans themselves to make sure that any deviation from the powers granted in our Constitution are well thought out and approved by the people themselves after careful consideration.
Another way that people in office seek to increase their power is to make changes to the Constitution through the use of emergencies. For example, Article I, section 9, clause 2 of the Constitution states that "the privilege of the writ of Habeas Corpus shall not be suspended unless in cases of rebellion or invasion as the public safety may require it." Habeas Corpus means that someone cannot be imprisoned without proper legal action by a court.
During the war of 1812 General Andrew Jackson had Americans arrested and held without court approval on the basis that they were deemed to present a danger to the war effort and to the public safety. Abraham Lincoln did the same thing during the Civil War and FDR did the same during WWII. Although these actions have a constitutional basis to them (although not all legal scholars agree on this point) after WWII there were some who said that "What is good in war is good in peace." In this way those seeking power were able to claim extra-constitutional powers on the basis of protecting the peace and insuring domestic tranquility in the same way it was done during times of war.
To make this argument seem more reasonable, they make an emergency out of everything and then talk about it as though we are at "war." There was the "war on poverty," the "war on the budget," the "war on drugs", the "war on the economy," the "war on oil", etc. During the "war on terror" we were told we had to quickly pass the Patriot Act so that we could intercept overseas messages between terrorists.
At that time many civil libertarians complained that this was a violation of our Constitutional rights while others argued it contained enough safeguards to protect the rights of those who were law abiding citizens. In the right hands it could be argued that this law would give the government a powerful tool for stopping terrorist attacks, however, this same law, in the wrong hands could potentially be used against anyone whom the government considered to be a terrorist, which could be defined as someone who spoke out or disagreed with the ideas or agenda of Congress or the President as John Adams did when passing the Alien and Sedition Act. In this way the government could take away the rights of free speech, habeas corpus, property, and the liberty of certain groups of people they deemed to be a threat to the safety of the country or who disturbed the domestic tranquility of the nation.
The problem this presents is that everyone with power, including dictators, always think that what they do is always right and they further believe that they are only using their power for the good of the people. Therefore, it is hard to separate the good guys from the bad. For that very reason, whenever anyone proposes passing any kind of legislation that gives more power to the government, it is always best to think of the consequences of what the newly proposed power would do if it was put in the wrong hands. For this reason, when we see someone wanting to pass legislation too quickly that gives the government more power based on the idea that it is an emergency that must be acted upon immediately, it would be wise to have a healthy skepticism of such an proposal.
Another argument that has been made is that the role of the government is to help people. Article I, section 8 of the Constitution says that "Congress shall have the power to lay and collect taxes…. and provide for the … general welfare of the United States." Recent court rulings have interpreted this to mean that it is the duty of the Federal government to provide programs that will improve the welfare of the public in general and that to fund these programs Congress has the right, under the Constitution, to tax the American worker.
However, that is not how the courts have originally understood this clause. Joseph Story was a Supreme Court justice from 1811 to 1845 and wrote a number of books on the Constitution. It was the writings of Joseph Story in 1833 that gave America its first comprehensive understanding of the Constitution and was the source that lawyers used for their study of our laws. In 1840 he wrote another book entitled, "A Familiar Exposition of the Constitution of the United States" which was used "as a text book for the highest classes in our Common Schools and Academies."
Concerning the "general welfare" clause in the Constitution, in chapter XV of his book Justice Story wrote that "the words properly amount to a limitation or qualification of the power of taxation; so that no taxes can be laid by Congress, except to pay the debts, and to provide for the common defense and general welfare." As he understood it, the term, "general welfare" is what the country experienced as a resulted of the government paying off their debts and providing for a common defense.
Nowhere in his discussion of this clause does he even hint that taxes should be raised to provide for the welfare of the general public. This would include such things as food stamps, Aid to Dependent Children, school lunches, home mortgage loans, student loans, health care, Social Security, etc. With the exception of President John Adams, all presidents and Congresses from 1789 to 1932 understood the "general welfare" clause this same way.
However, starting with President Franklin Roosevelt, lawyers and many justices in the Federal court system began holding the opposite view. As such, they began making rulings that took us farther away from the principles of government that our Founding Fathers gave us. But to sell these changes, politicians or special interest groups, who want to empower the government to provide aid to certain classes of people, appeal to our sense of compassion to care for the poor.
They talk about how the poor are "starving," how they have less advantages than the rich, how they don't make enough money because of discrimination in the workplace and in the school system, how they can't get loans for homes, and a long list of other heartbreaking circumstances that are meant to play on the sympathy of the American people to convince them that it is the government's duty to provide for the welfare of these poor, unfortunate, helpless people. In this way they seek to gain public support to allow the government to have the power to tax and regulate our behavior in ways that are not authorized by the Constitution.
Our Founders had great compassion for the poor but they did not think it was the duty of government to provide for their help. Instead, they felt it was the duty of the public to voluntarily provide charitable assistance when and where it was needed. However, today, the argument is made that there are so many poor that there aren't enough charitable organizations to provide sufficient help or they don't have the money or resources to give the kind of help the poor need therefore, they claim the government is the only organization that has the means and the ability to resolve these problems.
Aside from the fact that our form of government was not meant to care for the poor, this argument is simply false. Americans are the most charitable people in the world but charity, by definition, is meant to help people out of a temporary situation until they can get back on their feet. When living on handouts from others becomes a way of life, it is no longer charity; it is slavery because it promotes dependence on others rather than encouraging people to depend on themselves. It robs people of their individual freedom by making them dependant on the government to care for them. And this is exactly what most government welfare programs do.
But the idea of government helping the poor doesn't stop at just taxing those who work. It eventually leads to wanting the power to do several other things that are meant to help provide for the greater welfare of the general public. One such power is to stimulate and/or manage the economy for the good of the country by doing such things as issuing price controls, mandating minimum wages, imposing safety rules on businesses, and issuing regulations meant to manage corporate profits.
Another power people want government to have is the ability to redistribute the country's wealth so that it is more fairly spread among the population in general. The argument is that in this way everyone will be richer and there will be fewer poor. Those who want this power claim that it is unfair that some people have more money than they need while others don't have enough for even the necessities of life and that it is the duty of government to make sure everyone is treated fairly.
There are a number of fallacies with these arguments. The first is that history has proven time and again that when the government tries to manage the economy it only makes things worse. An example of this is the price controls President Jimmy Carter imposed in 1979. Although such methods of controlling the economy appear to work in the short term, it causes the free market system of demand and supply to get out of balance. For this reason, government controls don't solve problems, they only mask them until, in time, the market corrects itself and when that happens the protective bubble bursts and more people get hurt than if the government regulations had never been put in place.
The next fallacy is that there aren't enough rich to make much of a difference to the poor even if we took all of their money. If that were to happen the rich will become poor and the poor will become even poorer. When that happens then everyone's standard of living goes down.
The reason for this is that the rich are the ones who provide jobs. Take their money away and they won't have enough to hire new workers. The more unemployment there is the more poor there will be and the less prosperous the entire nation becomes. It is a proven fact that the more rich people there are in a society the higher the living standards become even for the poor.
For example, according to the World Bank figures for 2003 America has the third highest per capital annual salary of all other countries in the world and, according to the Department of Health and Human Services Poverty Guidelines for 2009, the poor in American are classified as anyone making $10,000 or less. That is more money than many people in some foreign countries make in their entire lifetime and is higher than the average annual salary of 85% of the people in the world. Because of our free-market system, the American "poor" are richer and have a better quality of life than many of the middle class in most other countries.
Even so, those who want the government to have more power to regulate the economy claim that our capitalistic free-market system is inherently unfair because it allows the rich to exploit the poor. What these critics want us to believe is that the rich don't earn their money from legitimate hard work but from unfair business practices where they cheat the poor out of their money. Furthermore, they look upon the rich as being greedy and uncaring about the needs of the working class.
For this reason, there are those who feel that the government should be given the power to regulate large, successful businesses such as banks, home mortgage companies, Wall Street investors, oil companies and many others who make "large" profits as a way to protect the general public from "predatory" "price gouging" "windfall profits" and other deceptive and unfair business practices.
Those who advocate such increased powers often portray the government as acting like Robin Hood who takes from the rich, greedy businessman and gives the excess money to the impoverished poor who are in greater need of it. Again, these arguments are intended to appeal to our emotions and play to our sense of fairness and compassion rather than to our sense of logic and reason.
The fallacy of this argument is that in the story of Robin Hood the people were poor because of high taxes that were imposed upon them by the government (i.e., the sheriff of Nottingham), not because rich businessmen came by and cheated them out of their money. What Robin Hood did was steal the money that had been forcibly taken from the people by their government and then gave it back to those whom it originally belonged. The more power the government is given the more power it has to tax its people which then robs both businesses and the individual of the money they've earned through their own labor and which they need to prosper.
The fallacy of painting business as being greedy and predatory is that companies can only succeed because of giving good service for their money. In the great majority of cases, those companies who become extremely wealthy get that way by having a large number of happy, satisfied customers. Those companies who do cheat their customers don't last very long because people will eventually stop using their product or service and then tell others of their dissatisfaction. When left alone, the free-market system weeds out the dishonest and rewards those who give honest value for their service.
As can be seen from just these few examples, those who wish to change our Constitution claim they are not making any changes at all but are only upholding the finest principles already contained in that document. Yet, very often such arguments are at best deceptive and at worst are outright lies, hoping that the average American doesn't know much about the Constitution or the principles upon which it is built. Very rarely does someone propose a change that limits the government's power, which is exactly what the Constitution was designed to accomplish. In nearly all cases, those who want change want to increase the power of government and usually have it concentrated in one branch. When that happens it destroys the system of checks and balances that is meant to protect our individual freedoms and gives the government more power to control out lives. This is how unscrupulous politicians have learned how to subvert the Constitution.