Response to a response and a rebuttal
Friday, November 29, 2002
by Kenneth Scot Stremsky
I thank Mr. Berg-Andersson for his great response. [Reference Vox Populi 28 November 2002 - Ed.]
I think having the CIA part of the Department of State is a great idea.
I think moving the FBI's Counterterrorism unit from the Department of Justice to the Department of Homeland Security makes a lot of sense for the reasons you mention.
I do not believe that Amendment Ten of the United States Constitution keeps a National Police Force from being created. I do think Amendment Ten keeps state police forces and local police forces from being eliminated.
The preamble of the United States Constitution says
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The National Police Force would help the Department of Homeland Security "establish Justice, insure domstic tranquility, and provide for the common defense." The National Police Force would make it easier for the President of the United States of America to enforce the federal laws of our country passed by Congress that the United States Supreme Court does not rule unconstitutional. One of the executive powers that the President of the United States of America has is the power of enforcement of the country's federal laws. The President of the United States of America gets to decide which federal laws are enforced. The President of the United States of America does not have to wage War when Congress declares War. The President of the United States of America does not have the power to enforce State Laws and Local laws because of Amendment Ten of the United States Constitution. The National Police Force would not have the power to enforce State Laws and Local Laws because of Amendment Ten of the United States Constitution. The National Police Force would only be able to enforce federal laws.
Many States and localities have health departments.
Many States have their own regulatory agencies.
Amendment Ten of the United States Constitution allows States and Localities to have their own police forces, health departments, and regulatory agencies because the Constitution does not prohibit them from having them.
The argument that you use against the National Police Force could be used for eliminating the Food and Drug Administration, the SEC, the FCC, and many other government agencies because the States are not prohibited from having versions of them by the United States Constitution.
I believe Article One, Section Eight of the United States Constitution allows Congress to create a National Police Force and allowed Congress to create the Food and Drug Administration, the SEC, the FCC, and many other government agencies.
Article One, Section Eight says that Congress has power
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" because the people who wrote our Constitution wanted the Federal Government to be able to "establish Justice, insure domestic Tranquility, and provide for the common defense."
Mr. Berg-Andersson responds:
There is one basic problem with Mr. Stremsky's reliance on the Preamble to the U.S. Constitution as his basis of an alleged power of Congress to create a National Police Force and that is this: the Preamble in and of itself does not, in fact, confer any powers upon the Federal government- the "Necessary and Proper clause" found in Article I, Section 8, clause 18 (and which Mr. Stremsky himself quotes) notwithstanding- but is, instead, merely a statement of purpose re: that document.
First of all, as to this "Necessary and Proper clause": please see my 29 November response to Henri-Paul Bolineau in which I point out how U.S. Supreme Court Justice Samuel Chase- while riding circuit and hearing the case of United States v. Worrall- utilized the language of this very clause whilst using it to argue that Congress, thus, had the power to define something that was a crime at Common Law as a Federal crime by statute; at the same time, Justice Chase also noted that Congress chose not to do so re: the particular case before him, thereby not allowing the crime involved in that case to be prosecuted in the Federal courts because it is the States, not the Federal government, that have adapted the Common Law to their individual needs- a fact that also implies that the Police Power lies with the States and not the Federal government, even without specific reference to the 10th Amendment itself.
Secondly, as to the Preamble itself: numerous early U.S. Supreme Court decisions [most notably Chisholm v. Georgia (2 Dallas 419 ), Martin v. Hunter (1 Wheaton 304 ) and McCulloch v. Maryland (4 Wheaton 316 )] made clear that the Constitution, rather than being the mere creation of the several States of that more perfect Union it formed, emanated from the People of the United States (hence the opening "We, the People..." in the Preamble- along with the fact that the Constitution was ratified, not by State Legislatures, but by Conventions of the People of the several States themselves). Therefore, the Preamble itself cannot confer powers upon the Federal government at the expense of the States (since the States as institutions in and of themselves were not parties to the statement of purpose that is the Preamble) absent some specific expression of a power so conferred in the body of the document itself.
U.S. Supreme Court Justice Joseph Story wrote, in his 'Commentaries on the Constitution': [The Preamble']s true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the Preamble declares one object to be, 'to provide for the common defense' . No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defense. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defense, ought not the former, upon the soundest principles of interpretation, to be adopted?
In other words, the Preamble is nothing more than a guidepost to the purposes of the Federal Constitution- much as the Declaration of Independence is a guidepost to the purposes of National Sovereignty: thus, while both the Declaration and the Preamble can shed some light on the reasons for, and meanings of, the specific provisions of the Constitution and the Laws made under it, neither Declaration nor Preamble can actually confer power on the Federal government to do something where there is no specific constitutional or legal provision allowing the Federal government to do it. Arguing otherwise would mean that all Congress, or the President, had to do- upon being confronted with an absence of a specific power (expressed or implied) to do something either Congress or the President (or both) strongly desired- would be to say, for example, "uh... well... it's for the common defense... yeah!... that's it!!... the common defense!!!" in order for a Federal law or rule or regulation to then pass constitutional muster: the inherent danger to Freedom and Liberty (not to mention the concept of a Government of Laws and not of Men) were this the case is patently obvious!
In the case of Jacobson v. Massachusetts [197 U.S. 11 (1905)], the first Justice John Marshall Harlan- writing for the U.S. Supreme Court- said:
Although [the] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it is to be found in some express delegation of power or in some power to be properly implied therefrom.
Justice Harlan then went on to specifically address the Police Power, the very power that would have to be claimed by the Federal Government (from the States, mind you- since, as heretofore opined in my responses to 'vox Populi' related to my 26 November Commentary, this Police Power is the most basic- where not also most essential- of the Reserved Powers left to the States by the 10th Amendment to the U.S. Constitution) in order for there to be a constitutionally permissible National Police Force:
The authority of the State to enact [the statute at issue in the Jacobson case] is to be referred to what is commonly called the police power- a power which the State did not surrender when becoming a member of the Union under the Constitution [underlining mine: REB-A].
This is why I say that the 10th Amendment's reserving of- among other things- the Police Power to the States constitutionally prevents the Federal government from setting up a National Police Force. Nowhere in the U.S. Constitution is there the granting of a general police power to the Federal government: such is not to be found at all among the powers of Congress enumerated in Article I, Section 8! Mr. Stremsky's argument- by which he attempts to enlarge the powers of Congress granted by the Constitution through the language of that document's Preamble- is precisely that which Justices Story and Harlan would decry, and for the reasons they themselves stated in their words as I quoted them above.
When Chief Justice of the United States John Marshall gave his famous opinion on the meaning of the "Necessary and Proper clause" in the case of McCulloch v. Maryland [citation already given above], he included what is considered the classic interpretation of that clause when he stated:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.
but he never intended that the "Necessary and Proper clause" become unhinged from all the clauses of Article I, section 8 that come before it! Utilizing the Preamble to give the Federal government a power to do that which it cannot constitutionally do is not at all "within the scope of the Constitution" and does not "consist with the letter and spirit of the Constitution": therefore, claiming such a power is not "appropriate" or "legitimate"- hence, not at all "proper", no matter how "necessary" it might appear.
The federal agencies Mr. Stremsky cites- the Food and Drug Administration, the Securities and Exchange Commission, the Federal Communications Commission- were all created with reference to a specific power granted to Congress under Article I, Section 8 (which is precisely why they passed constitutional muster when each of their respective existences was challenged in the Federal courts). In none of these cases was there an attempt to "fudge" by claiming that the Preamble to the Constitution was that which gave Congress the power to create these agencies. Therefore, my argument against a National Police Force can not, in fact, be used to eliminate any of these agencies: again, these agencies were created under specific powers of Congress granted in Article I, Section 8.
But upon what specific grant of power to Congress does Mr. Stremsky's National Police Force rely? What "necessary and proper"- or, to use Chief Justice Marshall's words, "legitimate" and "appropriate"- application of the powers conferred upon Congress by Article I, Section 8 alone (since no powers are, as already indicted in this response, conferred upon Congress by the Preamble itself) would then be the constitutional basis of such a National Police Force, keeping in mind that the States have not surrendered their Police Power to the Federal government via the Constitution and- to once more quote Justice Harlan Fiske Stone in United States v. Darby- "that all is retained which has not been surrendered"??
Mr. Stremsky is incorrect where he writes that "Amendment Ten of the United States Constitution allows States and Localities to have their own police forces, health departments, and regulatory agencies because the Constitution does not prohibit them from having them." This interpretation of his would make the States in our Union totally subservient to the Federal government, much as the Canadian provinces are subservient to the Confederation of which they are a part- at least insofar as the Police Power we are here discussing is concerned- for the very reasons I already thoroughly discussed in my 29 November response to Mr. Bolineau- reasons, however, that do not exist in the American Federal system because no general police power is conferred upon Congress in Article I, Section 8 in a manner comparable to that which is granted to the Parliament of Canada in Section 91 of the British North America Act of 1867.
What Mr. Stremsky opines is not at all what the 10th Amendment means, however. That Amendment was not, in any wise, the Constitution "allowing" the States to "to have their own police forces, health departments, and regulatory agencies" because the States had the power to create their own police forces, health departments and regulatory agencies (though, of course, they would not have had all of these in the modern sense) well before the U.S. Constitution itself ever existed. How can the powers which are reserved to the States have been merely "allowed" by a document that wasn't even written when these States were already exercising these very powers? Mr. Stremsky's theory of the 10th Amendment would require a surrender of Reserved Powers- including the Police Power- by the States under the original Constitution with the 10th Amendment then being a "reverse granting" of these powers back to the States: however, nowhere in the text of the original Constitution is there any evidence of such a surrender by the States of the Police Power (or, for that matter, any other Reserved Powers) to begin with!
Mr. Stremsky is correct when he writes that "the people who wrote our Constitution wanted the Federal Government to be able to 'establish Justice, insure domestic Tranquility, and provide for the common defense' "... but it has to also be understood that they did not want this to be done through the Federal government's usurpation of a Police Power the States themselves retained precisely because it was exercised by them prior to the Constitution being written, never surrendered by them anywhere within the language of that document (and, in fact, soon enough was to be reserved to them by a subsequent Constitutional Amendment- the 10th- which became part of the language of that document in contradistinction to any claim that this power had, in fact, been surrendered and was now being merely "reverse granted" to them).
Therefore, I stand by my notion that there is no general police power granted to the Federal government- and thus permitted by the U.S. Constitution- under which a National Police Force can constitutionally be created (putting aside the undesirability of such a National Police Force, which is a completely separate issue I will not here address).