Virginia Tomorrow

Events have taken quite a turn in this country over the last year.  A quarrelsome sense of unrest seems to have come over the land.  This is not the first time, nor will it be the last time we as a country have stopped to take stock of ourselves and by definition (for we are a government of the people) our government.  Regardless of party affiliation, these events should cause us all to stop, reengage in public affairs, and determine for ourselves what relationship we as a people should have with our government.

Beginning with the financial meltdown, moving on to the election of a new President, and culminating in the largest government insertion into our financial and personal affairs with bailouts, takeovers of private industry and healthcare reform, events have caused the populace to take a healthy look at the power of government.  As the pendulum of affairs swings back and forth, it seems clear we have gone too far and a correction is in order.

This conclusion is reached based on an understanding of our fundamental social compact as defined in our founding documents.

The fundamental question is one of liberty.  Is there a limit to governmental power over the individual?  We would all probably agree there is a limit, but the question is where is that line drawn?  At what point are we protected from governmental interference in our lives - even if it is “for our own good?”

God has granted humans the power of our mind.  This gives us the ability to think as we wish which is incapable of being controlled by others.  Out of this fundamental liberty flowed the concept of God given rights that Jefferson explained in the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Liberty is a God given right so important our founders believed that it was unalienable.  In other words it was so important that we could not give it away or sell it even if that is what we collectively desired.  Liberty guarantees our ability to exercise our God given free will to do not just what is “right,” but also to make mistakes.  By definition, we will not have equal outcomes.  For to the extent we allow liberty to be exercised only in a way that we collectively consider correct, we have certainly infringed on the right.

Of course, liberty does not exist in a vacuum.  In order to protect our own individual liberty from other’s exercise of theirs, we enact rules that we agree to follow.  These rules have their genesis in a government.  Therefore, the founders (after the failed experiment with the Articles of Confederation) came together as representatives of the people to set up such a government eleven years after proclaiming independence.  It is important to point out, that this new government was to be based on the concepts set forth in the Declaration, including the concept of individual liberty.  Therefore, at a fundamental level, this new government could have no power other than that devolved upon it by people through their representatives to the constitutional convention as select by the states.

The Constitution as originally written sets forth in the original seven Articles the fundamental operation of the three branches of government.  It dictates what powers each branch will have in relation to each other (checks and balances) and in relation to the people.  These powers are clear and most are very specific.  However, since the Framers knew they could not possibly foresee every future circumstance several clauses are of a more general nature.  Specifically, the Article I Section 8 powers to tax and regulate commerce seem more general, and have in fact been interpreted by courts as such.

For some, even this limited grant of power was too broad.  Could government power be used to infringe on individual liberty as understood in the Declaration of Independence?  Could the government make unlimited searches of an individual’s property, seize such property without compensation, disallow the owning of weapons, punish the free expression of ideas, or convict people of crimes without trial to name only a few such concerns?

To allay any doubt, four years later on December 15, 1791 the first ten amendments to the Constitution were ratified.   These amendments known to us as the Bill of Rights serve as a clear and sever check on the governmental exercise of power over our liberty.  Since these amendments were ratified after the Constitution itself, they must be read as restricting any broad grant of authority some may see in the Constitution’s original grant of power.  The first eight amendments are clear and deal with some of the specific questions raised above. For example the first amendment grants this author the right to express these views on liberty.

Importantly, there are two “catchall” amendments in the Bill of Rights.  The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment states, “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.”  Just as the Framers could not foresee all necessary powers in the original Constitution, these final two amendments of the Bill of Rights reflect the inability to foresee all infringements of freedom the government could devise in the future.  They are in fact a check upon future usurpations of liberty.  They are instructions to err on the side of liberty when interpreting the limits of governmental power.

Therefore, to answer our question, there is a limit on governmental power over the individual.

When viewed in this historical context it seems clear that the expansion of government power we have experienced over the last eighteen months is unwise and if not unconstitutional at least not in keeping with the Framer’s intent.  For example, let’s look at the new healthcare law.  Can the congress force the purchase of health insurance?  Does the mere fact that a free citizen may make a decision not to purchase health insurance affect interstate commerce and subject you to the complete arsenal of power at the disposal of the Federal Government?  If it does, surely there is nothing the government cannot require.  Would the failure to vote, the failure to speak, the failure to maintain a healthy weight and on and on subject you to penalties if Congress felt it was in your best interests?

Make no mistake where we draw the line limiting government power is important to liberty.  For once taken, liberty is very difficult to re-establish.  This is why people all over the country have taken a pause and decided to engage in the political process.   Even if they do not make the historical connection to God given liberty, they know in their heart that something is wrong. 

As President Ford admonished in an address to a joint session of Congress, “A government big enough to give you everything you want is a government big enough to take from you everything you have” - and he was not just talking about your money.

William H. Fralin, Jr., was a member of the Virginia House of Delegates from 2004 - 2010.  He represented the 17th District of Virginia, which encompasses portions of the Counties of Botetourt and Roanoke as well as a portion of the City of Roanoke. Delegate Fralin served on the Courts of Justice, Transportation, Education (chairing the Students and Daycare Subcommittee), Privileges and Elections Committees (chairing the Campaign Finance Subcommittee), and General Laws Committee.