Barry Germansky: “That’s [That the United States is a Democracy, that the American People can tax their brethren for any purpose whatsoever, that the Government itself has inherent rights to the wealth of its citizens] what the Constitution says. That obviously leaves a lot of room and it was wise for the founding fathers to do this [Author a document, pursuant to Rousseau’s general will theory, that allows a majority to lawfully coerce and tyrannize a minority], it leaves a lot of room for the people to implement new programs as they’re needed in future years. Obviously, how could they know the future? They couldn’t.”
Henry Moore: First of all, the Constitution need not specify which body or agency may or may not be created by CONGRESS (not the people). For it says in Article Two, Section Two, Clause Two, of the President, “He shall have power,…by and with the Advice and Consent of the senate, [to] appoint…all…officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…” While I agree that this is by no means a restriction upon the Federal Government as represented by the Authority of the Executive and the Consent of the Senate ONCE a department is created by LAW (i.e., the majority of the legislators, in a word, CONGRESS, and not THE PEOPLE). It is, however a restriction in the sense that a LAW, that is required to meet CONSTITUTIONAL muster, must be passed by BOTH HOUSES OF CONGRESS, and signed by the President (his signature DOES NOT represent a final “vote”, in his supposed role as “chief legislator”, a myth perpetuated by many and unfortunately condoned by CONGRESS in their cowardly refusal to rein in the UNCONSTITUTIONAL Executive Orders and departmental regulations; but rather it is a symbol of his willingness to ENFORCE or EXECUTE that LAW, which is his ONLY domestic prerogative apart from appointing Judges and Department heads and Cabinet members, and the utilization of STATE militias, as enumerated in the Constitution, when their calling forth has been provided for. Just because certain restrictions in regards to certain powers that have been usurped by the Executive Branch are not specifically mentioned by name, does not mean that the Executive Branch may rightly exercise those powers.) in his capacity as executor or enforcer of the LAW. The Constitution was written to place restrictions on the Federal Government and was ratified by the several States under those auspices. This, in theory, is a contract between the people and the states as well as the states and the federal government and as such is enforceable by Contract Law, the jurisdiction of which is authorized for the courts.
If we do only look at the part of the Constitution that I have just quoted as giving virtually or actually unlimited departmental powers (including the creation and empowering of the FDA and the DOEd, with all their trappings) to the Executive Branch and the Federal Government, which we might presume by default were it not for knowledge of the Federalist Papers, the Anti-Federalist rebuttals, English Common Law, the Ratification Debates, and the enforceable promises made to some among the ratifying states; on its own, then it becomes necessary, in order to inform the ignorant, to placate the doubtful, and to fetter those that strive for political power, if the intent is indeed to place a restriction upon the latter, to have more on this subject to work with beyond US Constitution Art. II, Sec. 2.
Exhibit No. 1: The Ninth Amendment to the Constitution, an original addendum, utilized by Madison in his Bill of Rights (a requirement by some of the states, especially heavily anti-Constitution Virginia). The text, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, were it to be properly examined, would yield this interpretation: The Federal Government has absolutely no authority whatsoever to ignore the rights of the people, that they retain, that were not specifically mentioned. What are these “rights”? Anything that is retained by the people as their Natural Right that has some continuity from their traditionally perceived rights and that do not infringe upon other rights enumerated or retained. Examples would include “acquiring and possessing property”, “pursuing happiness and security”, “reforming, altering, or abolishing, in a way conducive to the public welfare, any government acting contrarily to its intended purpose”, and “deciding, by Jury, the facts and the Law, in any case brought before a Court of Law”. These rights can not extend to “exclusive or separate entitlements to emoluments or privileges from the community, apart from consideration of a service rendered to that community” and preserve the criterion of “no infringement of the rights of others” at the same time. Could it not be, that in absence of any other plausible reason for adopting an Amendment such as the Ninth, that, perhaps, it was meant to keep Congress from, willy-nilly, enacting certain regulations or regulatory agencies that place restrictions, prohibitions, and limitations upon the rights retained by the people? This may still seem rather vague. What we know so far as I have thus written is that the Congress might actually have the authority to create unspecified agencies provided they do not violate unspecified rights. This will soon be modified by our examination of the Tenth Amendment. Before we do that: Who gets to decide which unspecified rights are Natural and which “rights” infringe upon those that ARE Natural? How can these riddles be solved? We can either take the writings of George Mason and Patrick Henry for granted, consult other written accumulations of Free Thought, or examine the facts. What are the criteria for determining which rights are to be retained, and which are to be thrown by the wayside? As mentioned before, whether or not it (the so-called “right”) infringes on other rights already enumerated or determined to be retained. This is a more objective process than most give it credit for. Simply put, any “right” that uses the FORCE of Law to Plunder the Life, Liberty, Property, or Security of one man and bestow them upon another, must be excluded from the retainment of Rights by the People. It is no “right” at all because it conflicts with the free exercise of actual rights. To consider them both a “right” would be an obvious contradiction. See Frederic Bastiat’s classic, and short, work, The Law. I can not recommend it enough.
Exhibit No. 2: The Tenth Amendment to the Constitution, a close cousin to the Ninth. As written, “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”, means that if a power is not mentioned in the Constitution, however general or specific, the Federal Government shall NOT exercise that power, NOR enact or enforce laws claiming that power. And, unless that power is forbidden to the States by Article One, Section Ten, the States are on level or higher grounds with/than the People to implement or use such power. To think of this power only in terms of law is to falsely believe that “rights” are granted by Government (instead of merely secured by it, as confirmed by the Declaration of Independence) and that Governments do not derive their legitimacy from the Consent of the Governed (the opposite of which is not incompatible with the belief that they derive their basic authority from and are ordained by God). One must think of it in terms of both law and the absence of law. Both limitations and allowances. Both artificial restrictions and Natural Rights. So, if we consider the relationships amongst the following: Federal, State, [Local; not mentioned in the constitution because States have their own constitutions which may enumerate or retain the notion of localities and municipalities], and We the People; in an indirectly hierarchical way, we see that the Federal Government regulates Foreign Affairs, and Commerce BETWEEN the several States, and NOT States’ internal affairs or noncommercial State-external affairs. Likewise, that the States’ Governments regulate noncommercial State-external affairs and their internal affairs, without violating powers granted to localities and municipalities enumerated in State constitutions. Localities and Municipalities may have their own levels of regulating certain activities without violating the constitutions they are accountable to (though they might end up violating the rights of the people they are answerable to). And finally, that the People are free to do those things that do not violate any of the constitutions or constitutional laws. The only way an individual can overstep his bounds in regards to Federal Law are if they counterfeit, commit piracy, treason, and offenses against the Law of Nations. Any restrictive law written not to define or punish these crimes is an unconstitutional law as per Article One, Section Eight, Clause Eighteen, among others. Depending on which state they may reside in and what powers are granted to that state in its constitution and what laws are passed in compliance with that constitution, the people may or may not be free to eat, drink, or inject whatever they care to, apart from where it may violate local and municipal ordinances. They may also buy and sell these things, without actually having violated a Constitutional Federal Law, some illegally created ‘Food and Drug Administration’ notwithstanding. Likewise, the people are free to educate or be educated in the manner they see fit for themselves or their children, apart from violations of constitutional state laws and local and municipal ordinances, which may or may not allow or prohibit any or all of the following: state schools, charter schools, private schools, home schools, self education, or no education. No ‘Department of Education’ is necessary, let alone Constitutional. The Constitution cedes to the states (or rather, the states don’t cede to the Constitution) the power to have their own inviolable constitutions, which, whether they establish the state as the highest authority and decisive entity within that state’s educational system or lack thereof, or not, are violated by the DOEd. This is not just a mere violation of the of the state’s constitution or the rights of the people as acknowledged by either the state or US constitutions or retained by them, but also a violation of the US Constitution which allows for the inviolable state constitution (with a GUARANTEE of a Republican form of government in Article Four Section Four, and of State Sovereignty in Article Four, Section Three, and the Tenth Amendment) in the first place.
Possible counter claims you might entertain: The General Welfare Clause and the Supremacy Clause. I do not disparage these, but in the greater context of the United States Constitution, they may by no means be used to construe that the Federal Government may violate any other part of the Constitution seemingly upholding the letter and the spirit of these two clauses. Plain and simple.
It is not up to “the people to decide what they want” using the coercive power of government. I should not have to describe to you what would happen if it were. Say what you will about the philosophy of Anarchism, whether socialistic or capitalistic. It has or appears to have its own merits. But it would be a fool thing to deny that such a system is incompatible with a society under the supervision of a government, whether Republican or Despotic, Free or Paternal. Either the government must be removed (as advocated by the Anarcho-Capitalists and others) or eaten away from within (as advocated by the more juvenile of certain Anarcho-Socialists). The former understand what Polybius understood. The latter will utilize the bread and circuses tactics of old, ignoring the lessons of history. Assuming they sincerely want to improve society, which seems to rarely be the case. It was established long ago (by Polybius, most notably, but others before him) that the Direct Democracy you advocate easily and naturally degenerates into Ochlocracy. Demagoguery and sycophancy know no bounds under such a system. People are given their welfare checks and their food stamps and their subsidies and their waivers and their favors and are then told to shut up, somewhat justifiably. The ones that would speak out are marginalized. The remainder, usually the self sufficient working class, are then told to fear some monster in the very air that they breathe (smog? acid rain? asbestos?) or across the ocean in some tyrant’s palace (Saddam Hussein? Moammar Qaddafi?) or hermit’s cave (Osama bin Laden? Ayman al-Zawahiri?).
A Constitutional Amendment enumerating a Democratic Referendum to pass laws would be needed in order to anachronistically make your assertions correct. As if the Seventeenth Amendment did not go far enough. The people may indirectly decide things through their representatives on many levels, through elections and through petitions. They may also (as in the Tenth Amendment) decide to do with their own lives (and, apart from their children’s, no one else’s) on an individual level, their decisions having no direct consequences for their neighbors or fellow citizens. As priorly noted, you describe a direct democracy. But, what our system really is and was intended to be, is a Democratic republic, wherein only someone or entity that is actually vested with such power may impose and enforce a law upon “lesser” elements within their jurisdiction. Even if you were right, it does not fit with the two examples you gave. The people did not have anything to do with the implementation of the FDA or DOEd or any number of other inefficient and unconstitutional bureaucracies. For the sake of the argument, I will give you the benefit of the doubt and (as your next sentence inadequately seems to allude to) assume you meant “the people’s representatives”, and not just “the people”, since the former are the ones that created such agencies, rarely having been influenced by “the people”, but rather, by special interests, unions, the executive Branch, and the representatives’ own flawed ideologies.
And no, the government (specifically Congress) does not have the “right” to “take tax” and “appropriate the funds”. They currently have the power to do so, GRANTED by the Constitution and CONSENTED to by the governed. THAT is what the Constitution (GRANTED) and the Declaration of Independence (CONSENTED) actually say. This authority may legitimately be revoked by the People. Taxation is theft. There is no fundamental difference.
We discussed this topic at length towards the beginning when referring to Article Two, Section Two, Clause Two, and again sometime after.