A major campaign promise of President Donald Trump was to "drain the swamp" in Washington, D.C ., but anyone the least bit familiar with the Constitution as designed by the Founders understands that it automatically would do this if strictly followed -- something neither major political party has done for nearly a century. That is why we now have the swamp to drain.
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. 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.
Both the Articles and the Constitution specifically were designed to harness the federal government and prevent its expansion, in accord with 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 -- it was granted 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 the needed specificity.
Most of the swamp is housed under Congress' failure to accept the limitations of this section of the Constitution. Today Congress legislates 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 and the creation of regional or international governments like the United Nations which impact 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 also end the posts of 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 which desired them.
At any given time, there exist nine to 15 thousand lobbyists who hang around our legislators, enticing them to go off the Section 8 list to make laws that benefit their interests in exchange for election contributions. Legislators fall like overripe fruit to this ploy. Certainly, congressional adherence to the Constitution would remove most of these lobbyists.
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 have aided in their creation, 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 in doing. Constitutionally, Congress has no authority to do anything not listed, or added to the list by way of amendment to the Constitution. But ignoring Article I, Section 8, gives members of Congress power to exchange legislative favors for campaign contributions which help keep them in office.
Although Trump appears to be serious about swamp drainage, both major political parties seem to like swamps. And, until that ends, real swamp drainage is not likely to happen.
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 more than 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.
Editorial on 02/22/2017