By Harold Pease, Ph. D
A major campaign promise of President Donald Trump was to “drain the swamp” in Washington DC but anyone the least bit familiar with the Constitution as designed by the Founders understands that it automatically does this if adhered to strictly, which neither major political party has done for most of a century. That is why we have the swamp to drain now.
Swamp drainage is not new. Collectively the Founders were against big government, which they had experienced and rejected by revolution. The “Swarms of Officers to harass our People, and eat out their Substance,” noted in the Declaration of Independence, ended with the Articles of Confederation and the Constitution was designed to prevent its return.
State government already predated the Revolution, by in the case of Virginia 157 years, and it was the states that performed the primary role in both early national Constitutions to organize a federated government, not to dominate or replace them, but to perform the functions they collectively viewed as national. Under federalism two governments would co-exist, the federal to handle primarily foreign related issues and the states domestic issues—neither master nor servant to the other.
Both the Articles and the Constitution specifically were design to harness the federal government from expansion in light of George Washington’s famous analogy. “Government is like fire, a dangerous servant and a fearful master.” The first contract placed too much restriction on the federal government necessitating in the Constitution a readjustment but in each case states played the primary role in the readjustment.
The first division of power is between the states and the newly created federal government with the states getting all power not specifically assigned to the federal government. Again, this division predates either national contract. The Constitution then divided federal power into three co-equal and separate branches of government: the Legislative, Executive and Judicial. Each with specific and limited grants of power and each designed to serve as a check on sister branches preventing them from growing that power.
The legislative branch was to make “all” federal law as stated in Article I, Section I (no authority to create unelected bureaucracies to do it for them, which goes far in draining the swamp) with House and Senate members fully reading and understanding every law or rule placed over the people. But their ability to make “all law,” (Article I, Section I) was restricted to just four areas as per Article I, Section 8: to tax, to pay debts, to provide for the general welfare and to provide for the national defense. Taxes were to “be uniform” throughout the states and there were no qualifiers on “to pay the debts.” General welfare and national defense were far too vague and subject to wide interpretation and abuse thus the semi-colon following Clause I, Clauses 2-9 defined what was general welfare and Clauses 10-17 what was national defense. Giving them too necessary specificity.
Most of the swamp is housed under Congress’s failure to accept the limitations of this section of the Constitution. Today they legislate as though there were no limitations. Consequently, whether challenged by the Supreme Court or not, most federal law is outside the Constitution and the “Swarms of Officers to harass our People, and eat out their Substance,” are found in the programs they created without specific constitutional base as for example: Social Security, Medicare, food stamps, environmental protection, climate control, Obamacare, growth of federal land without military purpose, foreign aid, nation regime change, creation of regional or international governments like the United Nations that impacts our national defense, to name a few.
All of these should have been added to the Constitution by way of amendment, which requires three fourths of the states to approve —or not, as required in Article V. Draining the swamp would include the thousands of people who manage these programs because if we really followed the Constitution most of these functions would not exist or would have been incorporated by the states that wanted them. At any given time there exist 9-15 thousand lobbyists that hang around our legislators enticing them to go off the Section 8 list to make law that benefits their interest in exchange for election contributions. Legislators fall like over-ripe fruit to this ploy. Certainly congressional adherence to the Constitution would remove most of them.
The President too is limited to a list housed in Article II, Sections II and III as is the Supreme Court in Article III, Section II. Neither has constitutional authority to create swamps but they can impact them, the president by executive orders and the Court by rulings that give legitimacy to swamps created by its sister branches. All other power was reserved to the states as per Amendment 10 of the Bill of Rights.
So serious swamp drainage would follow serious adherence to the Constitution, which Congress has shown little interest is following. Constitutionally they have no authority to do anything that is not listed, or added to the list by way of amendment to the Constitution. Ignoring Article I, Section 8 gives them power to exchange legislative favors for campaign contributions, which keeps them in office. Although Trump appears to be serious about swamp drainage both major political parties like swamps. Until that ends real swamp drainage is not likely to happen any time soon.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.