Comments On The Constitution

Floor Speech

COMMENTS ON THE CONSTITUTION -- (House of Representatives - June 22, 2007)

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Mr. GARRETT of New Jersey. Mr. Speaker, I thank the gentleman from Utah.

Of course, it is humbling to follow after such a gentleman who is learned in these things and also previous to coming to Congress a teacher of such topics of our history and of our Constitution. So I will try, while I will never live up to his standards, but try to emulate him as best I can. When I conclude, I guess I should end by say saying ``Goodnight, Rob.''

When we looked at those expressions, we remember the words of talk radio host Rush Limbaugh, who often does say the expression ``words mean something.'' He is usually expressing it about one of his callers who has just called in and talked about a particular topic or what have you, and he will take a little slight angle on it and say, well, those words mean something that are being said there.

So too it is with our Constitution, the fundamental document, the Founding Father document of this Nation. It is unique in a sense and it was recognized at that time. Back in 1803, Thomas Jefferson stated, ``Our peculiar security in this Nation is in the possession of a written Constitution. Let us not make it a blank paper by construction.''

How prescient Jefferson was to see how future generations of this country possibly would and have and courts have as well taken that document; taken its plain meaning, and manipulated it to whatever the understanding of those words currently mean, as opposed to getting an understanding of what the founding document writers intended at the time.

James Wilson, writing in the Study of Law in 1790, said, ``The first and governing maxim in the interpretation of a statute,'' or in this case the Constitution, ``is discover those meanings of those words by those who made it.''

So when we come to the floor today, or any day, to take a look at our Constitution, we must have an understanding of those terms as those meanings of the words had when the Founders first wrote them.

The gentleman from Utah just went to the point as far as the fact the Preamble goes to the issue of a limiting basis. I would just suggest, and I believe he made one reference to this, that despite the fact that today certain people look to the actual words of the preamble as giving us certain rights or powers now, Gouverneur Morris, the delegate from Pennsylvania at the time, added the preamble, I won't use the word as an afterthought, but certainly after the rest of the Constitution was written down. And specifically preambles at that time in any legal document that were written, were understood to say that they did not have a substantive legal basis or meaning to them.

That is to say a Preamble did not grant nor did it limit powers.

So today, when people come and look at the Constitution and say there is the general welfare clause in the Preamble, they should have an understanding that that was not an intention of the drafters of the document, to expand the powers of the Federal Government.

This can be understood if you look to how those who wrote it and lived at that time understood the document. Anybody who has an understanding of the life and times of Alexander Hamilton understood that there was a brilliant mind, a confidant of George Washington. At the beginning of the revolution, he became an aide in battle, and later when George Washington became our first President, Hamilton was there as the Treasury Secretary and one of the most powerful men in government at the time second to the President himself, more powerful than the Vice President and the Cabinet members at the time, someone who had an array of employees under his control inasmuch as the Treasury was dealing with the collection of excise taxes and the like. He had people under his control throughout the entire country.

He understood in order for this country to be great, and he wanted this country to be great, just as the mighty powers of Europe had been at that time, he had envisions that this country could expand and grow through different aspects of building bridges and roads and building canals. But even Hamilton understood that if he was to try to go down this road, that the powers that were granted to the Federal Government at the time were limiting on him. Even Hamilton suggested that a constitutional amendment would have been necessary for them to do some of the things that Hamilton thought necessary at the time.

So in 1790, Alexander Hamilton said an amendment to the Constitution is necessary in order to make the improvements to the country that are needed for a flourishing democracy. Of course, that amendment never occurred, and therefore the country and following Presidents never had the authority to do many of the things.

Mr. Bishop will probably cite some of examples of some of the constructions that they were intending to do, and Presidents such as Madison and others vetoed those initiatives.

How all of this is relevant to us today, as someone who may be listening to our debate or discussion right now, this past week the House of Representatives began the debate and now passage of several appropriations bills. We will be coming back in the weeks to come on the consideration and eventual passage of other appropriation bills. Likewise this past week, or the week before last, I should say, this House had a considerable debate on the issue of earmarks.

Just an aside on the whole issue of earmarks. The debate on that topic goes to whether or not the Congress has the authority, and no one really questions this, but the authority to make, the issues of spending money on particular projects, and I don't think anybody debates that too much. The debate we have had on that topic is the transparency issue and whether or not Members of Congress and the American public are able to see exactly what individual Members are requesting that the American tax dollars go to. That is an appropriate debate and one which I supported, and I supported openness and transparency and to shine the light of day on what we do here.

But that really begs the question as to where American tax dollars go at the end of the day. Earmarks are just a very small fraction of the overall government spending. Sometimes we hear of egregious examples, the proverbial ``bridge to nowhere'' and the Cowgirl Hall of Fame and the like. These things are targeted in an appropriation bill, either on the House floor or in the Senate or in conference. People are outraged both here in the House and at home as well when these things are added to the budget.

But we must understand that such spending does not occur simply through earmarks, it occurs in the underlying bills as well. And it occurs also by the executive office and the administration as well.

So the fundamental question that we must be asking is whether it is a particular earmark, whether it is for a bridge to nowhere or a Cowgirl Hall of Fame or a museum someplace that we tag onto a bill here in the House or the Senate; or whether it can be exactly the same type of project that the administration puts into the spending pattern through their agencies and departments, or whether it is the same type of spending in the underlying bill. The larger question is, and this is a question that every Member of Congress should always consider every time they reach into their wallet or their pocket, wherever they keep it, and they pull out their voting card and they put it into the little device to vote ``yes'' or ``no,'' does Congress, does the Federal Government have the authority to spend those dollars on those purposes?

The argument is, and this is where the gentleman from Utah was leading to in the Preamble, which is also referenced in article I, section 8 of the Constitution, is the general spending clause.

So all the adherents of those who support the earmarks and support the spending on these particular topics will either look to the Preamble or article I, section 8, the general spending clause of the Constitution, which says for the general welfare of this country.

Well, as the learned gentleman from Utah would say, we have to have an understanding what the ``general welfare'' of this country was intended by the Framers when they penned that document.

Today we would take that to mean anything that the House of Representatives can think of that would be an improvement for this Nation. That broad and general, expansive meaning, interpretation of the language is not what the Framers intended. What they intended was the opposite. They intended it as a limitating factor on spending.

The Founders intended the general welfare clause and the spending clause in the Constitution was limiting to the extent that Washington could not spend the American taxpayers' dollars on just a parochial interest for this one particular Member's district or for this one particular Member's town or for this county or what have you. Instead, it had to be generally good for the entire Nation.

There is a story that came out of a book that was written in 1884 which I would like to share about a former Member of Congress, the name of which most Americans know, used to be on Disney TV, but he was a real Member of Congress back in 1827-1831, and that was a Member of Congress by the name of David Crockett, more familiarly known as Davy Crockett. He was, I guess you would call him back then, a conservative Member of Congress.

He actually addressed in his writings after he served in Congress this issue of whether or not under the general welfare clause he, as a Member of Congress, had the authority to actually spend money on these parochial interests. Let me share that with you.

He stated: ``If Congress is not given such extensive powers, then who is?'' The answer lies in the 10th amendment. Of course, I am not the first person to suggest this; others have as well.

He writes about how one day in the House of Representatives, that would have been in 1827-1831, a bill was taken up appropriating money for the benefit of a widow of a distinguished naval officer. Several beautiful speeches were made in its support. The Speaker was just about to put the question to the floor of the House when Congressman Crockett rose.

``Mr. Speaker,'' he said, ``I have as much respect for the memory of the deceased, and as much sympathy for the suffering of the living, if suffering there be, as any man in this House, but we must not permit our respect for the dead or sympathy for a part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has no power to appropriate money as an act of charity. Every Member on this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity. But as a Member of Congress, we have no such right to appropriate a dollar of the public money. Some eloquent appeals have been made to us upon the ground that it is a debt due to the deceased. But, Mr. Speaker, the deceased lived long after the close of the war. He was in office to the day of his death, and I have never heard that government was in arrears to him.

``Every man in this House knows it is not a debt. We cannot, without the grossest of corruption, appropriate this money as payment of a debt. We have not the semblance of authority to appropriate it as a charity either. So, Mr. Speaker, I have said we have the right to give as much money of our own as we please. But I am the poorest man on this floor, and yet I cannot vote for this bill, but I will give 1 week's pay to the object. And if every Member of the Congress will do the same, it will amount to more money than this bill.''

At that point he took his seat, and no one replied. The bill was put upon for passage, and instead of passing unanimously, as no doubt it would but for his speech, it received only a few votes, and of course it failed.

Later, when asked by a friend why he had opposed the appropriation, he explained. Here is the crux of the story.

He told how several years earlier one evening he was standing on the steps of the Capitol with some other Members of Congress when their attention was attracted by a great light over the city of Georgetown. It was evidently a large fire. They jumped into a hack and drove over. The houses were burned, and many families were made homeless, and some of them lost all the clothes they had. The weather was cold, and he said that I felt that something ought to be done. And so the next morning a bill was introduced appropriating $20,000 for the relief. All business was put aside, and the bill was rushed through as soon as it could be done.

Davy Crockett stated, The next summer, when it came time to think about the election, I concluded I would take a scout around the district. When riding in a part of my district, I saw a man in a field plowing and corning towards the road. I spoke to him. He replied politely, but I thought rather coldly.

I began, Well, friend, I am one of those unfortunate beings called candidates. The stranger said, Yes, I know, you are Colonel Crockett, but you should not waste your time. I have seen you before, and I voted for you once, but I shall not vote for you again.

Davy Crockett was shocked by this, but the man stated, You gave a vote last winter which shows that either you have not capacity to understand the Constitution, or you are wanting in the honesty and firmness to be guided by it. In either case, you are not the man to represent me. Your understanding of the Constitution is different than mine, and I cannot overlook, because the Constitution, to be worth anything, must be held sacred and rigidly observed in all its provisions.

To which the Congressman replied, I admit the truth of what you say, but I do not remember that I gave any vote last winter upon any unconstitutional ground. But the man responded that he knew about it, having read about it in the papers, and how last winter you voted to appropriate $20,000 to some sufferers in Georgetown. Crockett admitted that was true.

The gentleman pointed out it was not the amount of money that Congress appropriates that he complains of, it is the principle. In the first place, Congress should not have excess funding. And secondly, it is the principle whether or not the Congress is abiding by the Constitution when it appropriates its money.

He said, so you see, while you are contributing to relieve one person, in that case the people in Georgetown, you are drawing it from thousands who are even worse off than he. If you have the right to give anything, the amount is a matter of discretion. You gave $20,000; you could have given $20 million. If you have the right to give to one, you have the right to give to all. And since the Constitution neither defines charities nor stipulates the amount, you are at liberty to give to anything and everything you believe in as charity, and for any amount you believe. You will easily perceive what a wide door this will open for fraud and corruption and favoritism on the one hand, and for robbing from the people on the other.

The man continued, Colonel, Congress has no right to give to charity. Individual Members may give as much of their own money as they please, but they have no right to touch a dollar of the public money for that purpose. You see, you have violated the Constitution in what I consider a vital point.

In the end what the poor farmer was saying was this: That he had a better understanding of what the Constitution meant and what the Founders had intended when they crafted it less than 100 years earlier at that time; that the Constitution set out limiting powers on the spending of money, both on the Preamble which sets out no powers whatsoever, as previously stated, and under the general spending clause of article I, section 8 of the Constitution.

And this is not just my interpretation or the farmer's reading. The Supreme Court has commented on this in several instances of note.

In 1905, the Supreme Court made that comment that the general welfare of laws under the preamble is not a grant of power but a limiting of power.

This tendency of the understanding of the Constitution was the case from the time of the Founders basically up until around 1930s. Starting in the 1930s in the New Deal, this Nation changed substantially.

It was at that time that this Nation began to have an interpretation of the Constitution that the Congress would be the arbiter of what the general welfare clause meant, and that the general welfare clause basically means that Congress can decide to spend money on any process or program that they desire. Then furthermore, subsequent U.S. Supreme Court decisions have held that the U.S. Supreme Court would not interfere with the determinations of Congress that these are basically political decisions.

To conclude, what this all means, that when the House of Representatives comes back together next week in the weeks that follow on the appropriation bills, when we hear discussions on earmarks and the likes, and when we hear from the other side of the aisle that we will be spending ever more money on the appropriation process than we ever had in U.S. history, the question we should always be asking, is it within the limits of the general welfare clause.

A strict interpretation of that clause would say no, but the Founders have said in order for it to be a general clause it must be for individuals all across this country and nor for a particular town, city or area of a State. It must benefit everyone.

But you will see in each and every one of those appropriations bills, in just about every one of those earmarks that those dollars are going in contravention of the Constitution and in contravention of what the Founding Fathers intended.

For that reason, we come here on a regular basis to try to raise up these issues to have a better understanding of what our Founders intended for the Constitution.

With that, I will say good night, or at least, good evening, Gracie.

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Mr. GARRETT of New Jersey. I will conclude with the quotes of Thomas Jefferson, who addressed this overall issue, in 1791, when opining on the constitutionality of a national bank, so, in essence, what he was doing is what we were doing, we do every week. The thought was at that time in 1791, of course, Alexander Hamilton at the time was pushing for such, and whether there was a constitutionality to do so.

He said: ``I consider the foundation of the Constitution as laid on this ground that `all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people,' '' obviously our 10th amendment. ``To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, not longer susceptible of any definition.''

Jefferson was very clear that once we overstep the authority that is granted to us by the Constitution, there is no limiting factor on us any more in Congress and the Senate can spend whatever they want on any purpose that they want. The Supreme Court has already opined that they are not going to be the element to rein us in.

So we, therefore, must, fortunately or unfortunately, if not going to rein in ourselves, look to the American public to be the political process to rein the Congress back in the manner that the Constitution and the Founders intended.

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