(Note:  This document was converted from WordPerfect format to html, so the pages indicated are not accurate.  Use the links to jump to the different sections.)

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Introduction (page 1)

Analysis and Interpretation of the Constitution (page 3)
(The Welfare and Commerce Clauses)

Judicial Opinion (page 12)

The Theory of Incidental Powers (page 13)

The Meaning and the Spirit of the Constitution (page 19)

Usurpation and the Consequences (page 20)

Foreign Affairs (page 22)

Our Situation with respect to Safety and Quality of Life (page 24)

Movement for Constitutional, Democratic Government (page 25)

The following Sketch of an Analysis of the Constitution of the United States was written in 1984. Much additional research in constitutional law has since been made, and the Author's analysis has been perfected. A number of treatises have been written, which are not included with this internet offering. For instance, a full point-by-point refutation of the Supreme Court opinion in McCulloch v. Maryland (1829) refuting the Court's doctrine of a vast mass of implied incidental powers vested in the Congress. Also, written up is a full treatment of the welfare clause, proving that it sets forth the objects of the Constitution, not a specification of legislative power: not a power to spend money for the indefinite general welfare.

It is found that the specific powers declared in the Constitution are the certain means by which the declared ends, or objects, are to be attained; and the grants of the specific powers confer the right to carry those specific means into execution (the means defined in the clauses conferring the specific powers), in order to obtain the declared objects, to "provide for the common Defence and general Welfare of the United States." Thus, for instance, the grant of power "To regulate Commerce with foreign Nations" of Article I, Section 8 of the Constitution specifies the means regulations of Commerce by which the end, the general Welfare of the United States, may be obtained; and the power "To regulate Commerce with foreign Nations" is the right conferred to the Congress to carry that means into execution that is, to make laws regulating commerce with foreign nations, as the power granted to the Congress is a legislative power (see Article I, Section 1). So, the welfare clause confers no powers no power to provide for the general welfare, which would be unbounded power practically but instead, the clause declares the objects of the Constitution, and therefore, limits the objects to be pursued by the Government's exercise of the granted powers. The Sketch below is given as it discusses more specifically just what we ought to do in order to restore constitutional government in America, though the ideas offered were conceived in the year 1984. I shall have a more refined ideas in the full treatise on the Constitution of the United States which I am presently preparing.

Introduction:  {Insert here the Introduction: Unconstitutional Government in America with its main emphasis on the accident hazards of nuclear power plants, and the question: Who should decide the safety and necessity of nuclear energy? Also, the reader occasionally will find text enclosed in braces {...}. This signifies text that has been added to the draft quickly, and may not be well enough composed or integrated with the body of the whole essay. Again, this writing is a draft.}

Notwithstanding the extreme catastrophic accident hazards of nuclear power plants, {See note no. 1.} the political decision of the nuclear safety issue will depend on who decides it- that is, it will depend on the subjective judgments of the particular set of persons who will hold the power to decide the issue. For these policy makers will make their decision on the basis of their personal judgments, values, and philosophies, and they will be influenced by their vested interests and by those to whom they are beholden. Presently, the Federal Government - mainly, the Nuclear Regulatory Commission, the Department of Energy, and, of course, the Congress and the President - make the nuclear energy policy in the United States; as the Federal Government promotes nuclear energy and exclusively regulates the field of reactor licensing and nuclear safety matters under the Atomic Energy Act and other acts of the Congress. The subjective judgment factors in the Federal Government's reactor safety evaluations include estimates (guesses) of accident probabilities; personal judgments of the reliability and adequacy of the safety systems and operational controls; personal judgments of the reliability of the theoretical calculations upon which the Government's accident hazards analyses are based (calculations which are based heavily on hypotheses and which are not verified by reactor experiments); and personal judgments of the "benefits" of nuclear energy, which depends on subjective judgments of economic, social, and national security matters, and personal way-of-life values.

It is crucial, therefore, that we inquire into the fundamental democratic and constitutional principles that apply to the question of who should decide the nuclear safety issue in America, in order to determine how to resolve the issue and ensure that the public resolution of this extremely serious issue is sound. More specifically, we ought to review the principles of the United States Constitution - the fundamental law of the land - in relation to the government of the internal, domestic affairs of the United States, and the Federal Government's nuclear energy program in particular. For it is contended that the Federal Government's promotion and regulation of nuclear energy is unconstitutional: That the Constitution does not vest in the Federal Government the power to promote and regulate nuclear energy, nor any broader authority, such as a general power to promote industry or technology; and that, therefore, the whole system of administration and code of regulations of the Federal Government in regard to civilian nuclear energy development and safety, the Federal laws limiting (waiving) the accident injury liability of the nuclear industry, Federal funding of civilian nuclear research and development and subsidies for the industry, and other aids to promote nuclear energy are altogether unconstitutional - in violation of the Constitution. {See note no. 2.}

However, limiting the review of the Constitution to the domestic affairs powers of government in relation to nuclear energy development is still not enough to really treat and resolve the nuclear safety question; for as will become evident, we must also review the Constitution with respect to most other operations of the Federal Government today, both in domestic and in foreign affairs. For it is more broadly contended that the Federal Government - the Congress and the Executive -have generally and grossly exceeded their constitutional powers and have otherwise violated the Constitution in both fields of domestic and foreign affairs: (a) In domestic affairs, by assuming and exercising a general power to govern the domestic affairs of the country, such as promoting, protecting, and controlling the development of industry, science, technology, public works, corporations, and banks, thereby effecting an extremely industrialized and technology way of life in America and abroad with tragic harmful consequences and looming problems, which include nuclear energy development and its hazards; and (b) In foreign affairs, by executive/presidential usurpations of the war-making and treaty-making powers, which involves the build-up of nuclear weapons and the danger of nuclear war, and by the Federal Government's interference in the internal affairs of other nations, where the foreign affairs usurpations support the unconstitutional policies and operations of the Federal Government in the domestic area and generally promote the interests of a favored class, including the interests of large corporations and their major stockholders. {See note no. 3.} In short, the nuclear energy problem is due to, and is part of, a general crisis of a virtual total breakdown of constitutional government in America, involving a general crisis of public safety, the despoliation of the environment, and the wanting of a quality of life.

The Constitution is the plan of government which the People established to pursue and obtain their safety and happiness. Therefore, when the Government violates the Constitution and exercises powers not delegated to it, this plan is subverted and denied to the People. {The consequences are all around for us to see, as well as are hard experiences of wars all the time.} It is vital, therefore, that we review the Constitution and inquire into and determine its true meaning - that is, to determine the intentions of those who made the Constitution, as to the extent of the powers delegated to the Federal Government and its departments, and the reasons for limiting the powers of the Federal Government - so that we can rationally proceed with establishing the system of government and a constitution which we think best to truly promote our safety and happiness.

{I should add a section on the reason and spirit of the Constitution:

- to remedy defects of the Confederation;

- not to make a nation but a confederation of States so that the people could govern themselves (through the mechanism of their State Governments) in Peace and Safety - safety attained by the protection of the combined forces of the States;

- to have government close to the People; ...}
 

Analysis and Interpretation of the Constitution

The United States Congress has assumed the power to promote and regulate nuclear energy { and practically everything else in the country} by interpretations of the so-called welfare clause and the commerce clause of Article I, Section 8 of the Constitution - the section of the Constitution which confers to the Congress the main set of its Powers. This section reads as follows:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; - And

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."
 

{Such are the powers. Give my interpretation. ...}
 

Of most importance is the Federal Government's interpretation of the so-called general welfare clause in the lead-off clause of Article I, Section 8 quoted above, which grants the taxation power. The "clause" in question, "to pay the Debts and provide for the common Defence and general Welfare of the United States," is now interpreted by the Federal Government as a grant of indefinite, therefore, unbounded power to spend money for the undefined objects of the "general welfare," such as funding for nuclear energy development (see the Atomic Energy Act, Chapter 1), and otherwise to legislate as Congress pleases, including making laws which "limit" (essentially waive) the financial liability of the nuclear industry for accident injury and property damage to the public; as if the Constitution reads:

The Congress shall have Power to provide for the general Welfare.

{The above paragraph is a little weak.}

In addition, Congress assumes that the power granted to it by the commerce clause of Article I, Section 8 of the Constitution, namely, the Power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes", confers not only the power to regulate the coming and going of merchandise (commerce) between States and with foreign nations, but also the power to regulate industry in each State, including nuclear power plants, and anything else that "affects" commerce, and includes even a general power "to stimulate" commerce, which can mean anything: building roads, jetports, erect Banks, print money, an so on ad infinitum. However, it is contended that these Government interpretations of the Constitution by the Congress are wrong: that these interpretations are unfounded and arbitrary; that they are contrary to the recorded intentions of those who made and ratified the Constitution on the behalf of the People as to the meaning, reason, and spirit of the welfare and commerce clauses, and to the general extent and limitations of the powers delegated to the Federal Government by the Constitution; and that these interpretations are made without regard to the grammar and context of these clauses in the Constitution, which fairly show up the intentions of the makers of the Constitution.

Of course, this means that almost everything which the Federal Government does today is unconstitutional, not just the Government's nuclear energy program; for the Congress has assumed a sweeping "general welfare" and regulatory power to promote, develop, construct, aid, regulate, and control what it pleases: such as subsidies and loans to industry; regulation of agriculture, and subsidies to farmers; making roads and other public works; the so-called civilian space program; sponsoring and thus effectively controlling scientific research and technology development in universities, laboratories, and other institutions; aid to education, housing, and persons; airline and airport money aids; water projects; environmental regulations (nullifying more stringent State regulations); and laws protecting corporations (nullifying State regulations), and chartering banks and granting them the power to create money (the cause of inflation); and so on ad infinitum. In short, the Congress has unconstitutionally assumed a general power to govern the internal affairs of the States - the domestic affairs of the Country - by its interpretations of the welfare phrase and commerce clause. In so doing the Congress has denied the States - government close to the People - the basic management and control of their respective domestic affairs, which, it is contended, the Constitution reserves to the States, and Congress has disregarded the authority of the People to delegate and limit the powers of the Federal Government.

{Explain that the Government created a super State - a Government remote from the people - a government the People cannot and do not control.}

Let us first consider the so-called welfare clause, "to pay the Debts and provide for the common Defence and general Welfare of the United States". In keeping with well-established rules of English grammar, I should refer to this string of words as the welfare phrase. {See note no. 4.} It is contended that this phrase confers no grant of power whatsoever, spending money or otherwise, neither by itself nor in connection with the preceding taxation power clause. Rather, the welfare phrase, was intended by the makers of the Constitution only to qualify the granted power of taxation in Article I, Section 8. The phrase was merely inserted so that it would be settled that Taxes could be levied to pay the Revolutionary War debts (a major issue at the time). However, the federal revenues were not to be limited to just paying debts, of course, but were intended mainly for paying the expenses of the federal Government - hence the reason for the "common Defense and general Welfare" phrasing, that being, to qualify generally the purposes of the granted power to raise money - the power of taxation, which the Congress lacked under the previous Articles of Confederation. This reason can be demonstrated from the records of the Federal Constitutional Convention of 1787.

A similar "common Defence and general Welfare" phrasing was used in the Articles of Confederation, specifically, in the specific article which provided for the federal Treasury (Article 8). The phrase declared the general purposes for which the federal treasury (supplied by the States upon requisitions) was to be applied. Yet no one claims, or had ever claimed, that the Congress under the Articles of Confederation had a general, indefinite power to provide for the general welfare. The specific powers of the old Congress were enumerated in a separate article of the Articles of Confederation - separate from the Treasury article - and did not include a power to provide for the general welfare. The "common Defence and general Welfare" phrase in the Constitution, thus, was simply carried over from the Articles of Confederation with the same limited meaning: which is, that the money raised for the United States is to be used for the common defence and general welfare of the United States, as defined and limited by the particular powers granted to the Federal Government as specified in the Constitution - that is, the money spending powers of Congress are to be implied only by the particular enumerated powers granted in the Constitution, such as the express power "To raise and support Armies".

That the welfare phrase is to confer no grant of power whatsoever, was explained by the makers of the Constitution in the great public debate on ratification in 1787-1788, particularly in The Federalist essays, which were the primary exposition of the Constitution for this debate, and also in the recorded debates in the State Conventions which ratified the Constitution. Essay number 41 of The Federalist specifically addressed this question of the meaning of the welfare phrase:

"Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution on the language in which it [the power of taxation] is defined. It has been urged and echoed, that the power `to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defense and general welfare of the United States,' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections [to the Constitution] than their stooping to such a misconstruction.

"Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expression just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases ... by the terms `to raise money for the general welfare.'

"But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? ... For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?"

In the Virginia Ratification Convention opponents of the Constitution argued that the welfare phrase would eventually be misconstrued by Congress as a general power to provide for the general welfare. However, in this Convention the Virginia Governor, Edmund Randolph, a leading member of the Federal Constitutional Convention, whose "Randolph Plan" of the Constitution (also called the "Virginia Plan") was the basis for the drafting of the Constitution in the federal Constitutional Convention, and who was the leading advocate for the Constitution in the Virginia Convention, assured the Virginia Convention that the welfare phrase is no grant of power to the federal Government whatsoever. He said this, to answer the opponents of the Constitution:

"But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given. They [Congress] have power `to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States.' Is this an independent, separate, substantive power to provide for the general welfare of the United States? No, sir. They can lay and collect taxes, &c. For what? To pay the debts and provide for the general welfare. Were not this the case, the following part of the clause would be absurd [namely, the follow-on clause `but all Duties, Imposts, and Excises shall be uniform throughout the United States']. It would have been treason against common language. Take it altogether, and let me ask if the plain interpretation be not this - a power to lay and collect taxes, &c., in order to provide for the general welfare and pay debts."

Later in the Virginia Convention, after the issue of the welfare clause was again raised, Governor Randolph laid the issue to rest:

"...back to the clause giving that dreadful power, for the general welfare. Pardon me, if I remind you of the true state of that business. I appeal to the candor of the honorable gentleman [who was Patrick Henry], and if he thinks it an improper appeal, I ask the gentleman here, whether there be a general, indefinite power of providing for the general welfare? The power is, `to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare'; so that they [Congress] can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be."

Randolph's explanation of the welfare phrase should be regarded as high authority (as well as The Federalist essays); for it was Governor Randolph who submitted the basic plan of a constitution in the Federal Constitutional Convention which was adopted in that convention as the basis for forming the Constitution. (See The Records of the Federal Convention of 1787, M. Farrand, Yale University Press.) Also, Randolph was also the first Attorney General under the Constitution, when the federal Government came into being with the adoption of the Constitution. This is significant; for being the Attorney General Randolph held the peculiar position in the Executive Branch of being most responsible for a legal opinion on the true meaning of the Constitution.

Now, some may argue that the statements about the welfare phrase made by Governor Randolph in the Virginia Convention on the Ratification of the Constitution, and the consistent statement in The Federalist essays are merely the opinions of a few persons and not necessarily the intentions of most of those who voted for the Constitution in the federal Constitutional Convention and in the Ratification Conventions of the States. However, there were no contrary explanations of the welfare phrase made by the advocates of the Constitution in the Ratification Debate. We ought, therefore, to assume that the delegates of the Ratification Conventions of the several States understood the welfare phrase as it was explained to them by the drafters of the Constitution, mainly by The Federalist, No. 41, and by Randolph. (The Federalist essays were, no doubt, the debaters handbook for the advocates of the Constitution.)

The text of the Constitution is consistent with the above authoritative explanations of the welfare phrase. For it is unreasonable to interpret the welfare phrase, "to pay the Debts and provide for the common Defence and general Welfare of the United States," as a grant of substantive power, such as to spend money for the general welfare, when the phrase is contained between two clauses which pertain only to the power of raising money: the "taxation" clause,

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,"

and the clause which qualifies the money raising power,

"but all Duties, Imposts and Excises shall be uniform throughout the United States".

Surely, the qualifying uniform Duties, Imposts and Excises clause would have been put immediately after the taxation clause, ahead of the welfare phrase, if the welfare phrase were intended to confer a separate power of spending - a power apart from the power of raising money. Consider also that the welfare phrase is set off by a small "t" in the word "to" in "to pay the Debts and provide for the common Defence and general Welfare," and is separated from the preceding taxation clause only by a comma, not a semi-colon, as distinguished from the key features of the other clauses (phrases) conferring substantive powers in Section 8, which are set off with capital T's in "To ...", separated from each other with semi-colons (see Article I, Section 8, quoted exactly on pages 3-4). For example, the power, "To provide and maintain a Navy;" and the next power "To make Rules for the Government and Regulation of the land and naval Forces;" and so on. Surely, an UNLIMITED POWER to provide for the general Welfare, if intended, would not have been given a lower grammatical status relative to the other powers of Article I, Section 8, especially the rather minor power,

"To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;" .

(Again, consider the capital T's and the semi-colons in Article I, Section 8.)  Rather, such unlimited power, if intended, would surely have been written into the Article I, Section 8 of the Constitution like so:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To provide for the general Welfare of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes; ...

To provide and maintain a Navy; ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; ...

(and so forth)

with the welfare clause being given its own separate line (sub-section), and indented, as is done in Article I, Section 8 when stepping from one type of granted powers to the next type.

Furthermore, that the welfare phrase, "to pay the Debts and provide for the common Defence and general Welfare of the United States", was intended (is) to mean in order to pay the Debts and provide for the ... general Welfare, as Randolph explained in the Virginia Convention, is supported by the second last sub-section of Article I, Section 8, in which two separate powers are definitely granted in a single sub-section but are separated by the conjunctive word "and," which signifies independent phrases (powers). I refer to the sub-section,

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular states, and the Acceptance of congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; - And

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."

(Emphasis added to "and to" and "And".)

Therefore, if the welfare phrase were intended to be a grant of power, the word "and" would or should have been inserted between the taxation and the welfare clauses, quite plainly. It would have been natural to do so, as such was done with the above-cited Seat of Government and Forts, &c. clauses. The whole sub-section could have appeared as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, and to pay the Debts and provide for the common Defence and the general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ...

By examining the whole of Article I, Section 8, one sees that this section is a long sentence with a series of "clauses," or phrases, all properly punctuated, and with the final clause - the necessary and proper clause, preceded by the required conjunctive "And". It is also significant that the final draft of the Constitution in the Constitutional Convention of 1787 was referred to a "Committee on Style and Arrangement," {See note no. 5.} which wrote the final text of the Constitution that was passed by the Convention and subsequently ratified by the States. Thus, we can conclude that the federal Constitutional Convention was careful about the grammatical aspects of the Constitution, and intended that the uses of words and punctuations to be significant in conveying the meaning of the Constitution.

Perhaps most significantly, if the to pay the Debts and provide for the common Defence and general Welfare phrase in Article I, Section 8 were intended to be a grant of general, substantive power to provide for the general Welfare, it would also be a power to provide for thecommon Defence (and also a power to pay the Debts); but such a grant of power would surely be superfluous in view of the express, enumerated powers of Article I, Section 8 for completely providing for the common Defence: namely, the powers,

To raise and support Armies, ...

To provide and maintain a Navy;

To call forth the Militia, ...;

To declare War, ...

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for organizing, arming, and disciplining, the Militia, ...

and so forth.

Also, it would be awkward to interpret the phrase, to pay the Debts and provide for the common Defence and general Welfare, as a grant of additional powers, since it would then mean a power to pay the Debts, as well as a power to provide for the general welfare. But, the federal Government would not have a power to pay the Debts, but a duty or obligation to pay the Debts.

To get around the above facts, the more sophisticated advocates of a general welfare power interpretation concede that Congress has no substantive independent power "to provide for the general welfare;" but nevertheless they contend that if Congress has the express power to raise money for the express purpose of providing for the general welfare, then the Congress certainly ought to be able to spend the money so raised for that general purpose. However, such a construction is indirect and is founded on implication, since it infers from the granted, express power to tax, a power to spend. Now, we ought to interpret the text of the Constitution according to its most natural meaning and probable intentions of its makers. Surely, a sweeping, unlimited, general welfare spending power, if intended, would not have been left to implication, but would have been given a direct expression in the Constitution, by express, unequivocal language, considering the directness of expression of the particular powers enumerated in the Constitution by the other clauses or phrases of Article I, Section 8. (Again, not even the power "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States" was left to implication. That is, since Article I, Section 8 grants the Congress the Power to coin Money, one might assume that the power to punish counterfeiters is implied, and yet it was not left to implication.) We can fairly conclude, therefore, that the welfare phrase implies no general power to spend money nor any other power.

As for the commerce clause - the power "To regulate Commerce with foreign Nations and among the several States" - it is contended that it is a power only to restrain or prohibit the imports of each State, by duties or prohibitions, and not a power to "stimulate" or promote commerce; for the terms "regulate" and "promote" have different meanings, and are used accordingly in the Constitution (see again Article I, Section 8). Nor does the commerce clause confer or imply a power to regulate industry, such as the manufacturing industry; for the activity called "manufactures" was regarded by the makers of the Constitution as a distinct field of human industry, separate from commerce - commerce being the coming and going of merchandise in ports. The commerce clause was put into the Constitution mainly to give to the federal Congress a superintending power to regulate the duties on imports, in order to promote harmony between the States; for such a power was sought by the Congress under the Confederation, to prevent the importing States from imposing duties at will at the expense of non-importing States through higher prices of goods. Such is the reason and spirit of the commerce clause power. Indeed, in the Constitutional Convention it was proposed to vest in the Congress specific powers to promote industry, technology, and commerce, by the following clauses:

"Congress shall have Power ...To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures; ...

"To encourage, by premiums and provisions, the advancement of useful knowledge [i.e., technology] and discoveries."

However, these clauses, which would have allowed a federal civilian nuclear energy program, were not adopted by the Convention. Indeed, the Constitution in Article I, Section 8 expressly grants to the Congress a limited power to promote science and technology, by the clause,

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Observe that this clause expressly restricts Congress's power to promote science and useful arts (technology) to the granting of copyrights and patents, and those acts only! Surely, if the federal Convention wanted Congress to have a general power to promote science and useful arts (technology), by, for instance, spending money for research and development, then they would have left off the restrictive, qualifier phrase about copyrights and patents.

The Congress does not support the Constitution by interpreting the clauses and phrases in the text in any way they please (arbitrarily), without regard to the words, their context, and their consistency, and the arrangement of the words, phrases, and clauses, the punctuations, the capitalizations of letters, and the other signs in the text of the most natural and probable meaning of the Constitution, and without regard to the intentions of its makers as found in the recorded debates on the making and ratification of the Constitution, which more positively and directly give evidence of the intentions of the makers of the Constitution. (It is vitally important to very carefully examine the text of the Constitution for its words, their context, their arrangement, and the punctuations and capitalizations. For how else can a people truly make a Constitution for their land, and define and limit the powers of government, and establish the rights of individuals, except by a written instruction for those who will exercise the powers of government - that is, a document - a text of words. Such document, therefore, has to be carefully interpreted, in order to carry out the will of the People for the plan of Government they wanted and intended for working their way to safety and happiness.

The Constitution was made and established by a great process of deliberation, public debate, newspaper articles, books, elections of delegates to the federal Constitutional Convention and the Ratification Conventions of the States, and debates in the Conventions, all of which together amounted to the "consent of the People" (by the criterion at that time), and should not be subverted by the Government interpreting its powers arbitrarily. For arbitrary interpretation amounts to the Government conferring powers to itself, which in turn means no Constitution at all, and thus deprives the people of their plan of government for pursuing and obtaining their safety and happiness. If it be necessary or desirable to confer additional powers to the federal Government, then this can be done by the amendment process which is provided for in the Constitution; or the people should change the amendment process or make a new Constitution, if considered necessary.
 

Judicial Opinion

Of course, there are the judicial opinions of the Supreme Court on the welfare and commerce clauses to consider. The Supreme Court has issued opinions, mainly since the late 1930's, which more or less support the present interpretations of these clauses by the Congress. However, these Court opinions are unfounded, as one can learn by reading and examining them; for the opinions are essentially mere assertions that the welfare and commerce clauses confer to Congress general spending and regulatory powers, and are not supported by any offered evidence or analysis of the intentions of the makers of the Constitution or the text of the Constitution. The primary case is U.S. v. Butler (1935), where the Court stated that the welfare clause confers to Congress a power to spend money for the general welfare, provided no "contractual obligations" are involved (297 U.S. 1,78). Later, the Court in U.S. v. Gerlach Livestock Co. (1950) stated that the welfare clause gives Congress the power to make internal improvements (water projects in that case), but offered no proof. The Court's Gerlach opinion simply refers to the Butler opinion, ignoring its no-contract qualifier (339.U.S. 725,738). However, both of these court opinions were mere side opinions which are not relevant to the decisions of the Court in those cases. (In the legal profession, such side opinions are known as "obiter dicta.") Indeed, the Court's ruling in those cases were against the U.S. Government. For instance, in Butler the Court held that the Agricultural Adjustment Act of the Congress is unconstitutional: specifically, that the welfare clause does not grant to Congress a power to regulate agriculture, including farm subsidies, and that neither does the commerce clause confer such power. Thus, the Court's ruling runs counter to any claim of a general power to promote and regulate industry, such as the nuclear industry.

For support of its obiter dictum in Butler that the welfare clause confers some form of limited spending powers, which is the Supreme Court basis upon which the whole nuclear power program is founded, and most everything else the Federal Government does today, the Court cited the book Commentaries on the Constitution (about 1850), by Joseph Story, an earlier Supreme Court judge, who expressed the same view which the Court in Butler adopted. For support of his view Story cited a message on "Internal Improvements" authored by President Monroe in 1822. In that message, Monroe held that the welfare clause confers a limited power to spend money for the general welfare of the United States, such as disaster relief. However, Monroe admitted that the had not held this view earlier, when the Constitution was adopted - a point which Story neglected. More importantly, Story, and the Court in Butler, neglect the fact that the main opinion of Monroe in his message on Internal Improvements is that the Constitution does not confer to Congress a power to make "internal improvements," such as roads and canals, neither by the welfare clause nor by the commerce clause. Accordingly, Monroe vetoed a Roads Construction Bill which the Congress had passed, which was the occasion for his message - a "veto message" that is required to be submitted to the Congress whenever the President vetoes a bill passed by the Congress. This flatly contradicts the 1950 Supreme Court opinion in Gerlach that Congress has a power to make internal improvements based on the welfare clause. {See note no. 6.} Moreover, the Supreme Court in an earlier case, Kansas v. Colorado (1906), held that the Congress has no general welfare power to make internal improvements (206 U.S. 89,90).

As for the commerce clause, the Supreme Court in the case U.S. v. Darby (1940) held that Congress can regulate any activity such as manufacturing, if it substantially "affects" interstate commerce (312 U.S. 100,118). However, this again is merely an unfounded claim, and is not supported by any evidence of the intentions of the makers of the Constitution. Indeed, in earlier opinions, the Supreme Court held that the Constitution, including the commerce clause, does not by implication confer to Congress the power to regulate industry, whether it be manufacturing, mining, agriculture, fisheries, or whatever. Kidd v. Pearson, 128 U.S. 20-21 (1888), and Hammer v. Dagenhart, 247 U.S. 251, 271-273 (1918). (For more critical analysis of the Supreme Court opinions on the welfare clause and the commerce clause, I refer to Chapter 13 of my previous book, The Accident Hazards of Nuclear Power Plants.) Still, some may argue that the Court in its earlier opinions on the commerce clause had erred. Therefore, one must review the basis for the later opinions of the Supreme Court on the commerce clause. That basis is the theory of incidental powers.
 

The Theory of Incidental Powers

The later Supreme Court opinions that the Congress has the implied power under the commerce clause to regulate industry, so long as the activity regulated materially affects commerce among the several States, is founded on the "incidental powers" theory of the necessary and proper clause of Article I, Section 8 of the Constitution:

"The Congress shall have 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 ..."

This theory was put forth by the Supreme Court in 1819 in the so-called "landmark" case McCullough v. Maryland (4 Wheat. 421), in which the Court held that Congress is authorized by the necessary and proper clause of Article I, Section 8 of the Constitution to charter Corporations - in particular a Bank - as an "incident" to its powers to tax, to regulate Commerce among the several States, and to borrow Money. The Court held that the necessary and proper clause confers to Congress "a vast mass of incidental powers." Said the Court:

"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."

Of course, this criterion hinges on what is the "spirit" of the Constitution: By specifically holding that the necessary and proper clause confers by implication a power to charter corporations, the Supreme Court set a precedent for freely interpreting the powers of Congress (or the Government), as if the clause confers a vast mass of incidental but unspecified powers, and thus tending (attempting) to define the spirit of the Constitution as allowing such free interpretations. This means practically that there is no limit or boundary on the powers of the Congress (or the Government).

However, I contend that the Supreme Court erred in its opinion in McCullough v. Maryland - that the Court failed to read the true sprit and meaning of the necessary and proper clause, and the extent of the Federal Government powers as intended by the makers of the Constitution. Firstly, the Court ignored the intent of the makers of the Constitution with respect to erecting Corporations. The Constitution does not expressly grant a power to charter banks or corporations in general; yet it specifies such powers "To coin Money," which is a power to erect a Mint, and the power "To establish post Offices." It seems clear, therefore, that if the makers of the Constitution had intended to vest in Congress a power to charter banks, they would have expressed the power as well, like so:

The Congress shall have Power ... To erect Banks, or To charter Banks, or To establish Banks.

Indeed, the federal Constitutional Convention of 1787 specifically considered a proposal to grant Congress a power "to grant charters of incorporation," but this proposed power (clause) was rejected by the Convention, partly for the reason that it would lead "to the establishment of a Bank." (See the REcords of the Federal Convention of 1787, by Max Farrand, Yale University Press.)

Secondly, the Court neglected to consider the reason for, and spirit of, the necessary and proper clause, again the intentions of the makers of the Constitution. This clause was not to vest in the Congress a vast mass of implied or incidental powers; but rather, it was intended to be the express, substantive power to execute the powers of the Federal Government that are specifically granted in the Constitution. The great defect of the Articles of Confederation, according to the those who pushed for a new federal constitution, was the lack of power of the Congress of the Confederation to execute its resolutions - that is, the "Continental Congress" under the Articles of Confederation had no power to compel obedience to the federal resolutions and otherwise carry out the powers of the former Confederation. {See note no. 7.} {The States were then the sole authority for making laws; hence, the Congress depended on the States to make the laws for compelling obedience to the Congressional resolutions.} (See The Federalist essays, Numbers 15, 16, and 21.) Hence, the purpose of the necessary and proper clause, in conjunction with Article II establishing the Executive Department, was to expressly confer to the federal Government under the Constitution the power to execute its resolutions, and enforce its valid treaties. For this was the primary reason for replacing the Articles of Confederation with the Constitution: To create a federal government with the power to execute the federal powers: to enforce and carry out its acts or resolutions, including making laws with criminal sanctions, provided, of course, that the laws are constitutional. Therefore, it is only natural that the federal Constitutional Convention would have specified this power of executing the federal resolutions and valid treaties - that they would have specifically granted to the Congress the power to carry into execution its resolutions, and all other powers granted to the Federal Government by the Constitution, by the power to make laws. The Convention did so by the necessary and proper clause. {The necessary and proper clause is the power to make laws, as distinguished from making Resolves - a Resolve is the will of the Congress, a law is the rule the citizen must obey, if constitutional.}

Early in the federal Constitutional Convention of 1787, the general resolves which the Convention adopted to serve as the frame for the Constitution provided for a "national Executive ... with Power to carry into Execution the national Laws."

Here was the first step by the Federal Convention to remedy the basic defect of the Articles of Confederation: to provide for the execution of the federal powers. But notice that the phrasing of the executive power would have placed indefinite power in the Executive to execute the national laws {See note no. 8.} - that is, an indefinite power to choose the means for executing the laws, which would sure be unwise. The powers of Congress had not yet been defined in detail at that stage of the Convention. When the Constitution was finally drafted in detail, the Congress, not the President, was chosen to decide on and specify (by laws) the means for executing the powers of the Government, by the grant of power to make necessary and proper laws for carrying the powers of the Government into execution; and the President was limited accordingly to the express duty to "take Care that the Laws by faithfully executed" (Article II, Section 3). Such is the reason and spirit of the necessary and proper clause: to establish, together with the vesting of the "executive Power" in the President, the Federal Government's power to execute the United States Government powers, by a full power to make the Laws necessary and proper to compel obedience to the constitutional Acts of the Congress, not a general grant of unspecified, indefinite, "incidental" powers. {The second footnote below {See note no. 9.} is an extract from my treatise Analysis of the Constitution with respect to the Authority to make War and Alliances, and the Employment of Force against Iraq by Presidential Acts. The extract is pertinent to this point.}

{ Consider adding this part in braces, which was hurriedly composed: The Congress under the Articles of Confederation had no power to make Laws to execute its resolutions, as the States were then the sole authority to make the laws governing the conduct of their respective citizens. So, the Constitution granted this power to the Congress, without which Congress could make no laws to compel the individual citizen to obey its resolutions. Plainly, therefore, the necessary and proper clause is a power to make laws, not a power, for instance, to grant charters of incorporation, or to erect banks, or to emit paper money, or to build roads, but simply a power to make laws to carry out the constitutional powers vested in the Government. For instance, since the Congress is vested with the power to regulate commerce with foreign nations, Congress is plainly empowered by the necessary and proper clause to make a law declaring that it shall be unlawful for any person to impede the performance of duties of a U.S. Government officer who administers the regulations of commerce, and declaring the criminal penalties for violations of the law. For another example, Congress can make a law declaring the regulations of commerce (the schedule of duties on imports, for instance). The point is, that the law must be that which is plainly needed to execute a specified power; so in fixing the limitations of the power to make necessary and proper laws, we are bound to respect the plain intentions of the makers of the Constitution as to what each particular power is to mean - for instance, the power to promote the progress of science and useful arts (technology) by granting copyrights and patents is not a general power to promote the progress of science and useful arts.}

Finally, The Federalist essays directly explain the necessary and proper clause (numbers 33 and 44): The Congress must have the power to make necessary and proper laws for carrying into execution its "specified" powers; else the Constitution is a "dead letter." This is reasonable. Indeed, The Federalist (No.44) reasoned that if the necessary and proper clause were left out of the Constitution, the Congress could interpret its express powers as including by "implication" any and all "particular powers" which are not specified in the Constitution but which Congress may think are needed to execute its express powers. In this case, The Federalist argued that "every objection" against the Constitution would be plausible - one objection being that the necessary and proper clause might be construed as a sweeping set of indefinite powers. Therefore, according to The Federalist, the clause serves to preclude a theory of vast incidental powers.

It should be noted too that shortly after the Constitution was adopted, it was amended to declare that the "powers not delegated to the United States by the Constitution ... are reserved to the States respectively, or to the people." (Tenth Amendment) This Amendment expressed the sentiments of the States' Ratification Conventions that the necessary and proper clause was not to imply any sweeping set of indefinite (incidental) powers to the Congress.

{It is noteworthy that the written Constitutions of other nations, such as Canada, Switzerland, and West Germany are explicit in granting specific domestic affairs powers to their federal or national Governments, such as relating to roads, power plants, banks, and so forth.}

Of course, the makers of the Constitution could not define in the Constitution precisely all of the necessary and proper laws that the Congress might need to make, in order to carry into execution its granted powers and thus carry out its federal responsibilities under the Constitution. Therefore, the Congress must exercise judgment when determining the specific means for executing its powers; but they must support the Constitution, which can only fairly mean that Congress should interpret the specific powers granted by the Constitution according to the plain meaning of the specified powers (the plain meaning of the clauses in the Constitution), and the reason for and spirit of these powers - the intentions of the makers of the Constitution - and not simply interpret the clauses arbitrarily.

To illustrate, Congress has power to lay and collect Taxes. How was this done? With revenue officers, tax bills, etc. Thus, a power to lay and collect taxes is not a power to create banks, in order to store the money collected by the taxes for safe keeping and for convenience of dispensing the money. For we all know that Banks do more than store Government tax revenues, but issue Notes (paper money) and lend money, and seize property upon delinquent loan repayment. Nor does Congress have power to build roads, in order to facilitate travel by the revenue officers. Again, Congress has power to coin money. Congress might say that this power implies a power to punish those who counterfeit the lawful Coin, but even this power was not left to implication, as the sixth clause of Article I, Section 8 vest Congress with the power

"To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; ..."

We can conclude, therefore, that the Congress is not vested with implied, incidental powers by the necessary and proper clause, and that the Supreme Court opinions which the Congress relies on for its assumed general welfare spending and broad regulatory powers do not establish or prove that the Federal Government is vested with such powers by the Constitution.

Still, however, it seems to be universally assumed in the Government and in the legal profession that "the Constitution is what the Supreme Court says it is," regardless of arguments one might have about the intentions of the makers of the Constitution or the text of the Constitution. However, this bulwark assumption is unfounded. As expressed in the Constitution, Article III, the power vested in the Supreme Court is only "judicial" - that is, the Court has only the power to settle or decide a controversy between litigants of a case, by the meaning of the phrase "judicial power" given in the classic treatises on Law and Government that existed at the time the Constitution was made - for example, Blackstone's Commentaries on the Laws of England. The "judicial power" granted to the Court is not a power to make the Constitution - not a power to grant powers to the Government by defining the Constitution. The duty of the judges of the Court when deciding cases is simply to "support" the Constitution (Article VI), which fairly means to uphold the intentions of those who made it. The Congress, the President, and all other officers of the Government have by the Constitution the same duty to support the Constitution.

Of course, the Court must "interpret" the Constitution when deciding cases involving constitutional questions; but so too the Congress and the President must "interpret" the Constitution, when each of those two branches of the Federal Government exercises what it sees as its powers and responsibilities under the Constitution. There is no fundamental difference in the duty to support the Constitution. One must distinguish between the Court's opinion or interpretation of the Constitution given in its decision of a case, and the Court's decision in the case. Only the decision of a particular case - that is, the settlement of the specific controversy between the parties of a case {See note no. 10.} - is the Law, which, of course, must be executed (upheld) by the Executive Branch of the Government, even if the Court's opinion on a constitutional question is considered wrong; for there must be an authority somewhere to settle a controversy. {See note no. 11.} Such is the "judicial power," which ends with the decision of the case.

Thus, Supreme Court opinion on the Constitution is merely opinion to consider but not necessarily correct. Indeed, a Supreme Court opinion on a constitutional question is not even binding on the Supreme Court in later cases, as we have found. For example, the Court in Darby "reversed" the Court opinion in Dagenhart v. Hammer. Now, if in the view of Congress or the States the Court issues incorrect opinions on the Constitution, then the Congress, and ultimately the State legislatures, can act to ensure judicial support for the Constitution, by the Senate's careful exercise of the "Advice and Consent" power over the appointment of the Judges of the Supreme Court, or by the process of amending the Constitution - with the State Legislatures convening a federal Convention, if necessary, if the Congress will not obey the Constitution. {See note no. 12.}

We may also conclude, therefore, that for the Government to rely on Supreme Court opinions on constitutional questions as a source of powers, when the opinions of the Supreme Court contradict the intentions of the makers of the Constitution, is but a means to deny the People constitutional government. The practice of relying on the opinions of a few judges appointed by the President and the Senate to secure new powers to the Federal Government is hardly a republican process of conferring powers to Government - hardly a substitute for the consent of the People.

{The above section on "The Theory of Incidental Powers" was written in 1984. Since that time, this Author has more deeply investigated this theory, or doctrine, and find that it the doctrine is just wrong. The full proof is contained in a treatise which this Author has written, titled:
 

"The Doctrine of Implied, Incidental Powers (allegedly) vested in
the United States Congress by the necessary and proper Clause of
Article I, Section 8 of the Constitution, critically reviewed and refuted.
-- A point-by-point Review and Refutation of the Supreme Court Opinion
in McCulloch v. Maryland (1819) (210 pages)

with an addendum on "The General Welfare Clause", consisting of 11 pages. This treatise will be included in the Author's planned full treatise on the Constitution of the United States.}
 

The Meaning and the Spirit of the Constitution

Again, the purpose of the Constitution was to remedy the defects of the previous system of confederated government under the Articles of Confederation (1781-1787). By those Articles, the Congress was to manage the external affairs and protection of the States, by specific grants of power; while the powers of governing the internal, domestic affairs of the country were reserved to the States, respectively. However, the Congress under the Articles of Confederation lacked the power to enforce its resolutions and to raise money and troops on its own authority. For the Congress depended on the States to carry out the resolutions of the Confederation and to comply with its requisitions for money and troops. This system of voluntary compliance, according to those who pushed for a new Constitution, began to break down, however, as various States became delinquent in the matter of requisitions, and more and more disregarded the Congress. The other concerns were that dissention would arise between States over territorial and commercial disputes, that a State could provoke war with foreign nations by violating treaties, and that generally the protection afforded by a Union of States would not be maintained. On the bases of such concerns, the United States Constitution was made, in order to remedy the defect of the lack of power in the Congress under the Articles of Confederation to execute the federal resolutions and enforce treatises entered into by the United States.

(The other main reasons for the Constitution were to secure harmony among the States (e.g., the power to regulate Commerce with foreign Nations and among the several States), to provide for the means to settle disputes between States, and to guarantee a republican form of government in each State.)

For the remedy, the Constitution establishes a Government - the "Government of the United States" - with full power of raising money and troops, {See note no. 13.} and enforcing the laws and treaties. See the enumerated powers of Congress quoted above from Article I, Section 8, especially the necessary and proper clause, and Article II, which confers the Executive Power. The Constitution did not, however, substantially change the sphere of the federal powers of the Congress, except for the added power to regulate Commerce with foreign nations and among the several States. As was under the Articles of Confederation, the Constitution limits the power of the Congress to the management of the external affairs and protection of the States {See note no. 14.} by specific grants of power, with a few exceptions in the domestic field of additional and well-defined powers of general utility, such as the powers to establish post offices and uniform bankruptcy laws, and to grant copyrights and patents, while reserving to the States the government of their respective internal, domestic affairs for the most part. That is, the Constitution was "to form a more perfect Union" of the States, meaning a confederation of States but with a federal Government to enforce it, and was not to form a grand Nation (State) with a "national" government which would govern both the external affairs and the internal affairs of the Country! Indeed, the word "national" was used in the early draft outline of the Constitution in the 1787 Constitutional Convention but was subsequently deleted, when the Convention settled on the extent of the Federal Government powers. (The authors of the early draft of the Constitution sought to vest in the Federal Government broad powers over the domestic affairs of the States, hence the word "national" was included in the original proposed draft outline or plan of the Constitution; but their specific proposals were rejected in the Convention.)

As explained in The Federalist essays, Nos. 14 and 45:
 

"In the first place it is to be remembered that the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects. ...

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States."

Observe that the powers delegated to the Federal Government are to be "few and defined," as distinguished from "indefinite" powers which were to be reserved to the States. However, a power "to provide for the general welfare" would be an indefinite power, quite clearly; and were it conferred to the Federal Government, it would have destroyed the very division between the external affairs powers of the federal Government and the internal affairs powers of the States that The Federalist explained was to be established by the Constitution - the former granted to the Federal Government and the latter reserved to the States (with the exception of the post office, copyrights, patents, and bankruptcy laws).

Such is the limited extent of the sphere of powers of the United States Congress under the Constitution. The reason for reserving the powers of domestic affairs to the States was, according to the makers of the Constitution, that republican government is not practical for a nation having a large territory, where the government of such a nation would then be remote from the people and therefore not manageable or controllable by them (see The Federalist, No.9.) {Insert the quotation from The Federalist.}
 

Usurpation and the Consequences

However, the Congress over time has usurped the powers of the States, by its arbitrary interpretations of the welfare and commerce clauses, with the result that the Federal Government now governs the domestic affairs of the Country with respect to many matters, indeed the more important matters.

In the process of a long history of usurpations, including aids to industry, technology development, public works (super highways, airports, etc.), regulations protecting favored (and unconstitutionally promoted) industries and corporations, erecting corporations, including banks with power to create money (checking account money and other paper money, in part to aid the Federal Government and corporations with loans to finance unconstitutional projects and generally to promote industry and technology) {See note no. 15.}, research grants of money to universities and laboratories (thus controlling what is researched, and what is not researched, as for example, the accident hazards of nuclear reactors), and so on ad infinitum, the Federal Government and the interests it has promoted, have, by means of taxation, money creation, spending, regulations, and coercive measures, effected a highly industrialized, commercialized, mobilized and technological way of life (a haphazard, chaotic system of industry and transportation) with a great many industrial hazards to the public and workers, such as nuclear power, and tragic environmental, economic, and social consequences, which we all know about: pollution, deteriorated and contaminated environment, neglected cities and towns, poor quality of life in general (in the view of many), cancer disease, persistent inflation, due to unconstitutional money creation operations of the Federal Government and the banks it has chartered, which devalues the worth of one's money savings and income, causing constant hardships on people and constant labor strife (always new wage demands), poverty, excessive work, crime, drain on resources and waste of labor, and so on. (See the introduction to this Sketch, titled Unconstitutional Government in America.} It is a way of life which the People have never said they really wanted, as they never vested in the Federal Government the powers to promote it. For when the Federal Government operates outside the Constitution and exercises powers not granted by the People, it represents not the People, but the powerful industrial, financial, and other interests and segments of society which the Unconstitutional Government promotes and protects - in effect, a corporate oligarchy.

The People, except of course the ruling class, or the class that profits from the unconstitutional aids and activities of the U.S. Government, were simply forced to adapt to the political and economic realities of unconstitutional government, since most people - persons of ordinary means - have no practical control over elections, policy, and laws of a "national" government of such extensive territory as is the United States - a government remote from the people and accessible and controllable mainly by the wealthy and other powerful, favored interests - a government with far too many constituents per legislator and far too removed geographically from the People - a government grown to absolutely huge proportions which overwhelms any citizen efforts to control it or influence it even.

Consider too the fact that Rhode Island has the same number of votes in the United States Senate as California, by the equal suffrage rule in the Constitution (Article __ and Article __, which disallows any amendment of this rule of the Constitution). Yet the Senate controls the making of the laws jointly with and independently of the House of Representatives in the Congress. Indeed, only 9% of the U.S. population - the population from the a majority of the States having the least population - controls the Congress through the Senate. This is clearly not democracy, when the Federal Government governs the domestic affairs of the Country, as it now does by whole-scale usurpation. It would be foolish, and wrong, to maintain this system of extreme disproportionate representation for governing America, quite clearly.

The equal suffrage rule for the Senate, however, is not an undemocratic "anomaly" in the Constitution, as some might call it; but rather it merely reflects the confederate nature of the system of government for America under the Constitution, where member States of a confederation customarily hold equal voting power, and where a confederation is concerned with the external affairs of its members, not the domestic, internal affairs of each member State. But when the U.S. Government assumes powers to govern the internal affairs of the country (the States), the system of Government becomes undemocratic, because of the above-mentioned disproportionate representation.
 

Foreign Affairs

This author further contends that the Federal Government's usurpations and abuses of power extend to foreign affairs as well, in support of and in connection with many of the same undemocratic, corporate and oligarchic interests and ambitions which the present U.S. Government unconstitutionally promotes and protects domestically, including nuclear energy development. These include:

(1) Unconstitutional, presidential war-making and war-provoking acts, where one man, the President, {See note no. 16.} assumes the power to make war and otherwise use force abroad, including now initiating and waging nuclear war, without any express grant of power to the President by the Constitution to make war;

(2) Unconstitutional presidential making of military alliances with other nations without the advice and consent of the Senate; whereas the Constitution expressly requires the Senate's advice and consent, two thirds present concurring, to make treaties, which includes treaties of alliance;

(3) Military and so-called economic aid to foreign nations without treaties of alliance and treaties of assistance consented to by the Senate, again two-thirds of the Senate being required under the Constitution {also, Congress has no constitutional power to give money aid to foreign nations, not even to the States of the Union, for that matter};

(4) Exclusive presidential control of foreign negotiations, such as the treaty negotiations on nuclear disarmament, thereby denying the Senate its constitutional power to decide on the United States policy for each such foreign negotiation conjointly with the President, and also denying the Senate its constitutional power to decide on the appointment of the ministers sent to conduct the negotiations.

(5) Interference in the internal affairs of other nations, by such activities as the so-called "covert operations."

(6) The Import/Export Bank and other measures to promote the export of weapons and nuclear reactors to foreign nations (Congress having no power to charter and fund such corporations).

With respect to war making, it can be shown that there has been a long train of unconstitutional presidential war-making and war-provoking acts during this century, which explains, I contend, our history of recurring wars, {See note no. 17.} including World War I, World War II, Korean War, Vietnam, and more recently, Lebanon, Grenada (and more since) {See note no. 18.} - {and now the war against Iraq}.

With respect to nuclear weapons, the Congress has by the Atomic Energy Act delegated to the President the power to acquire nuclear weapons "for use as he deems necessary for the national defense," which surely is an absolutely dangerous, unwise, as well as unconstitutional delegation of war-making power to the President - one man given the power to order nuclear war!

The presidential usurpations of the war making and treaty making powers are based on the same method of interpreting the Constitution which characterizes the domestic usurpations of the Federal Government, namely, arbitrary interpretation. Again, the Constitution contains no express grant of power to the President to make war; whereas the Constitution expressly reserves (delegates) the power "To declare War" to the Congress (Article I, Section 8), and the President's power to make treaties is expressly conditioned (authorized only) on the advice and consent of the Senate, two thirds of the Senators present in a Quorum concurring (Article II, Section 2). As in the case of the "welfare clause," the makers of the Constitution explained the war-making and treaty-making powers clearly enough in the ratification debate. If the Constitution is to vest in the President the power to make war - the paramount of all governmental powers - then we may assume that such power would have been expressed in the Constitution, and not left to implication; for the Constitution expressly grants to the President such minor powers as the power to fill vacancies during a recess of the Senate, leaving not even this very minor power left to implication. (This author is preparing a treatise on the matter of president war-making and nuclear weapons, which will attempt to fully treat the foreign affairs powers of the Constitution, to be titled Presidential War-Making, Nuclear Weapons, and Unconstitutional Government.

{I refer to my treatise Analysis of the Constitution with respect to the Authority to make War and Alliances, and the Employment of Force against Iraq by Presidential Acts, plus an Addendum dated January 15, 1991, and a Supplement dated April 6, 1991, for an in depth analysis of the Constitution with respect to the war-making power and the President's assumptions of war-making power. The Addendum and Supplement analyze the January 12th "use of force authorization" resolution of the Congress, and conclude that the resolution is also unconstitutional!}

{Note: A more comprehensive analysis of the foreign affairs and military powers of the U.S. Government has been drafted for inclusion in this Sketch, but has not been completed nor typed. This section will show that the Congress has no power to maintain (keep up) standing armies, so that the keeping up of the huge army and air force to support it is not in the spirit of the limited power granted to raise and support armies for two years. Also, the drafting of men and sending them out of the country to fight in wars will also be shown to be unconstitutional. 29 August 1999: One part is now in final draft form, titled:
 

"The Supreme Court Opinion in U.S. v. Curtiss-Wright Export Corp.
-- The Doctrine of inherent Powers of the United States Government
with respect to "International Relations," reviewed and refuted.
-- A point-by-point Review and Refutation of the Supreme Court Opinion
in U.S. v. Curtiss-Wright (1934)."

All the other parts are nearly completed as well, which are all to be presented to the United States Courts in a planned law suit against executive department officials, past and present, for making war unconstitutionally against Iraq and Yugoslavia.}

A discussion of the foreign affairs powers of the Constitution, and the usurpations of these powers, is not out of place in an analysis of the nuclear energy hazards and the related constitutional law matters. For we need to have the full perspective of the unconstitutional government, in order to fully appreciate our domestic condition and our nuclear hazards predicament. The foreign affairs usurpations are intertwined with, and an extension of, the domestic usurpations of the Federal Government. Just as the Federal Government unconstitutionally promotes enterprises in the United States, it extends such activity to foreign countries. Nuclear energy develop is one: promoting the export of nuclear reactors and reactor technology, and consequently exposing foreign peoples to the accident hazards of nuclear power plants. Moreover, we may assume that there is a connection between the "civilian" nuclear reactor development and the Government's nuclear armament program: the production of plutonium for use in making nuclear weapons. In this regard, it is important to point out that the members of the United States Nuclear Regulatory Commission (NRC), who regulate the civilian nuclear reactors with respect to safety and licensing, are appointed by the President and serve at his discretion, according to the unconstitutional law of Congress which created the NRC (42 U.S.C. 5841); and it is the President who is also empowered by the Atomic Energy Act to acquire plutonium from reactors to make nuclear weapons for USE as he alone deems necessary for the "national defense." Such are the influences affecting the Federal Government's judgments of the necessity, hence the safety or "acceptable risk" of nuclear power plants - influences which are connected with usurpations and unconstitutional delegations of the war-making power and other powers of foreign affairs.
 

Our Situation with respect to Safety and Quality of Life

The lack of Constitutional Government - hence, the lack of Democracy - therefore, fully explains our present nuclear reactor hazards predicament (we should now fully appreciate the crucial role of subjective judgment in deciding on the acceptability of the nuclear accident risks), and, I believe, explains the main of our economic, environmental, social and foreign relations problems as well, and also our history of recurring wars, and now the creation and danger of nuclear weaponry and nuclear cataclysm. For we have not a democracy, but unconstitutional government: a corporate oligarchy based on certain freedoms of the individual to pursue private interests (gainful activity) but within a system of undemocratic government, where favored persons and organizations obtain unconstitutional aids to exploit others - not a power of the citizenry to really govern, by government close to them.

The nuclear energy issue is thus a part of a broad set of fundamental questions of the way of life which we want, of the system of government that should be established in both fields of domestic and foreign affairs, and of the laws and public aids that should be made or unmade with respect to the regulation and promotion of industries, public works, corporations, and so forth, in order to promote and to ensure our safety and well being and to promote a truly enjoyable way of life and quality of environment - the pursuit of safety and happiness, not just jobs and material production and consumption. Resolving these broader questions will, of course, involve assessing the nuclear risks and the feasibility of sustainable energy alternatives and reduced energy usage. The nuclear issue is also intertwined with the issues of nuclear weapons policy and foreign policy in general. The nuclear issue, therefore, really cannot be resolved in isolation, neglecting the broader matters. We cannot leave the nuclear energy issue to be decided by unconstitutional government.

The dangers of nuclear war, the accident hazards of nuclear energy, the despoliation of the natural environment, the energy crisis, the wanting of an improved quality of life, and the related constitutional crisis are thus profoundly serious matters, and demand that most assumptions of modern life, of the political, economic, and industrial system of things, of military and foreign policy, and of nuclear weapons and their control, be thoroughly reviewed by the citizenry - by the People.

It is clear that we cannot go on living the present way of life indefinitely. For there is only a finite, limited supply of fossil fuels; and nuclear energy appears to be much too hazardous. Also, the continuous digging up of toxic minerals from the Earth and the production of toxic chemicals, and the spreading of these poisonous substances on the surface of the Earth (farm chemicals, industrial waste products, and pollution emissions) is more and more upsetting the ecology (acid rain, ground water contamination, dying lakes, wildlife, and trees, oil spills, and so on), and endangering and injuring human health, besides further and further degrading the quality of life. Aside from the accident hazards of nuclear energy, the pollution from the high level of general industry and transportation needed to support the nuclear energy industry, which includes the use of coal and oil, is of itself despoiling of the environment, as we are experiencing.
 

Movement for Constitutional, Democratic Government

We ought, therefore, to review the most fundamental constitutional and democratic principles of government, and establish a system of government which will more definitely enable us as a society to deliberate on and cooperate to solve the critical problems facing us, especially since these problems are related to (created by) unconstitutional acts of the Federal Government. The question is, what is the system of government that ought to be established? Should we maintain the present centralized system of government, dominated by the "federal" Government, despite its unconstitutional evolution and undemocratic features of remoteness and unequal representation? Or should we conform to the Constitution and restore the general powers of domestic affairs to the States?

To seek an answer to these questions, we should consider experience, the condition of the country, theoretical argument, practical sense, the democratic principles of closeness of government to the People and equal representation, and the Constitution - the plan of government which was last established by the People - and the REASONS which the makers of the Constitution had in limiting the powers of the Federal Government. These considerations, it seems to me, point to government close to the People, namely the government of each State in the Union, as the government which should be the primary government, and the one which should receive our main attention, except for those specific powers and responsibilities which we (the People) may decide to vest in the Federal Government.

By means of the State legislature, and the system of administration and local government established under it, we should be able to govern ourselves, provided that a State itself is not too large. For the electoral districts of a state legislature are small, relative to the federal congressional districts (and whole States in the case of the Senate), making it practical for the State representatives of the People and candidates to consult the People - the constituency of their respective districts. It should not be too difficult for a citizen to effectively participate in an election for the State legislature, as compared to the Congress in the Federal Government. One would not need to be wealthy or supported by powerful interests to be able to effectively campaign for office, as one would more likely be carried by one's known reputation and qualifications in a district that is small. {See note no. 19.} Also, the citizens would have real access to their elected representatives in the State Legislature, and their interests would more coincide with that of their representatives. This is the essence of government close to the People.

Of course, suddenly returning the domestic government to the States would be very upsetting. The present order of things is founded through a fifty-year evolution on a very big, centralized government whose operations are well diffused throughout the Country. However, we must ask: Are the People in control of this present system of government? Obviously not, when we consider again the facts of remoteness of the U.S. Government, the gross inequality in representation in the U.S. Senate, the condition of the Country resulting from unconstitutional government, and our experience of wars. The People ought to establish a government which they can control, if they want to govern themselves, and not be controlled by a corporate oligarchy. This means, therefore, government close to the People, hence government by the constitutional system of separate States - hence State Government as the primary government, with the States joined in a confederation conducted by the Federal Government, as the Constitution was intended, not a centralized, "national" government for the whole America. As for the conversion problem, this would be part of the work of democratic government: simply a necessary task to gain control of government. The object would be the People's safety and well-being, not to upset their welfare. {See note no. 20.}

One frequently hears, however, that State Governments have not shown themselves very competent to govern, especially in the area of "civil rights," but in most other fields as well. To this opinion it is answered that we should not assess the potentials of state government by the existing and long historical unconstitutional system of government in America, since most of the important powers of domestic affairs have been usurped by the Federal Government, leaving the State legislatures with relatively little power, and consequently, receiving little attention by the People, with most of the natural talent for government being attracted to the Federal Government, where, in my opinion, it is largely wasted and misused - certainly misappropriated, as it is practically all unconstitutional. One could argue that the inadequacies of the State Government's are a consequence of the People losing out to the usurpations by the Federal Government - a kind of domestic conquest by the Federal Government and its corporate and monied beneficiaries.

The argument against State Government could be turned around to ask: Has not the present unconstitutional "central" government based in Washington, D.C. shown itself ineffectual to govern wisely, to secure the safety and happiness of the People, when we consider the terrible conditions in America and our history of recurring war, hardships, crime, drugs, unhappy living, pollution, and so on? And what about the record of the U.S. Government of interfering in the internal affairs of other countries with "covert activities" of the CIA? If State Government has shown inadequacies, why not attend to it and perfect it? (If we neglect State government, then we cannot expect that the State laws and operations will be to our liking.) Would it not be more practical to improve on government, when the government is close to the People, then when it is very distant (and much larger)? Yes, there may be more powers which we may want the Federal Government to have but which are not now specified in the Constitution. That is, there may be certain domestic matters which simply ought not to be left to local or State prejudice but regulated by the federal Congress, and we may conclude that certain problems can only be solved by the Federal Government. But would it not be better to define such powers specifically, and grant them by amendment to the Constitution, where the People express their consent; than for the Federal Government to assume whatever powers it pleases? For though in one instance it may be for the public good that the Federal Government should act without express constitutional authority, such extra-constitutional practice sets a precedent for the Government to arbitrarily interpret its powers generally, thus destroying constitutional (and democratic) government, quite clearly.

Another view, which I suspect may be widely held, is that things would not have turned out much different than had the Constitution been adhered to over the years - that, for instance, the development of industry and technology would have occurred with all its problems, hazards, despoliations, and pollution consequences, regardless of the Constitution. This view holds that the "problems" of America were and are not due to unconstitutional acts of the Federal Government but are due instead to other factors, such as inadequate education, an uncritical citizenry, human folly, economic pressures, a natural tendency of technology, or things of this sort. However, I think one should not dismiss the constitutional principles so quickly. One must be very careful in speculating what might have happened had the Constitution been adhered to. To presume to know how the People and their State Governments might have acted had the Constitution been adhered to (adherence to the Constitution still allows for amendments to the Constitution) assumes that one is extremely knowledgeable with the history of former times and the thinking of the various interest classes who would have influenced or controlled public policy on the great multitude of different matters - a tenuous assumption. Consider nuclear power. The States individually and private companies probably and evidently lacked the financial resources to develop nuclear energy. Also, the electric power companies who would operate the nuclear reactors could not obtain accident insurance. Consequently, it took the combined resources of the States to develop nuclear energy, by the Federal Government effecting the nuclear development; and the accident liability of the nuclear industry was waived by the Federal Government, since the States did not grant any such immunity to industry - indeed, the common law was that those who cause injury to others are liable (responsible) for compensating the injured - a principle which the Federal Government disregards by its grant of immunity from liability.

Now, one can speculate that the States would have granted the Federal Government the constitutional power to promote and regulate nuclear energy had the Congress asked for an Amendment to the Constitution; but this would be just speculation. It would presume that the State Legislatures, and at least three fourths of them, would have been careless about the People's safety and would not have questioned the possible hazards of nuclear energy. Instead of speculation, we should consider principles and experiences (facts). The constitutional principles of main concern here are that the Federal Government was not to have general powers of domestic affairs, including no power to promote and regulate industry or technology, such as now nuclear energy; and the Executive was not be vested with the power to make war and alliances without the authority of the Congress and the Senate, respectively. These principles were established for REASONS, namely, to avoid "problems" and to promote the safety, well-being, and happiness of the people (a quality way of life and environment, peace, and so forth). In the light of these principles, and if we consider that these principles were violated, and if we further consider the tragic experiences of wars and hardships and the present hazardous and other terrible conditions of life in America, including the despoliations of the land, waters, and air, and the danger of nuclear war, all under unconstitutional government, we can, in my opinion, fairly conclude that the "problems" were and are likely or basically due to the Federal Government not adhering to the Constitution, at least for the most part. The principles were violated, and look at the consequences.

The task before us is not to dwell on how things might have been had the Constitution been adhered to (we should not rely on speculations); but rather we ought to carefully consider the factual experience and principles to guide us, and decide on how we should now proceed with a plan of government to pursue our safety and happiness - to solve our problems. Should we insist on the constitutional principle that the Government is to get its powers from the consent of the People, or not? Should the Constitution be adhered to (amended if we would like), or not?

One also frequently hears that most of "the people" are apathetic; that they do not care much about the quality of life and the environment, nor public affairs, but only their immediate interest and pleasures; and that anyway, there is no such thing as "the People" collectively making their constitution and cooperating together as a society; but rather, there are only selfish individuals and interest groups. By this view, the Constitution is not to be interpreted according to the intent of its makers, but rather the constitution for the Country is to be a "living constitution" - one which evolves from the competition of various interests in the Country and social pressures, where powers of the Government are gotten by simply exercising them and establishing them by the public acquiesence - in short, an oligarchy managing the public affairs with interest groups fighting for their interests and for power. {See note no. 21.} Thus, the "living constitution" is founded not in a single, fundamental written law, but in the body of accumulating Supreme Court opinions, Congressional Statutes, and Executive Orders, always changing and adjusting (and enlarging).

To this view, one may answer that the apathy of the People could be a consequence of the Federal Government usurpations, which render the People essentially powerless to really govern themselves - or we must assume so. Consequently, the individual citizen withdraws from the community and cares only for himself and his immediate interest; and thus the People (the citizens together) do not practice enough the art of collective action and cooperation as a society. As to the "living constitution" theory, it is clearly just a theory or scheme to establish oligarchical government and promote one's own interest mainly, and deny democratic, constitutional government to the People - a form of dishonesty and exploitation. It reduces to this, I think: Do we want constitutional government, founded on the consent of the People, or not? Do we want a democracy or an oligarchical form of government? I think that the People would insist on democratic, constitutional government. They (We) have a right to be asked.

The principles of democracy and the Constitution, therefore, suggest that the People of each State should take charge in managing their respective political societies - their States. That is, the people should assert their right and power to govern themselves: to attend to the State elections and re-qualify, and re-invigorate their respective State legislatures and government, taking back the domestic affairs powers which the Federal Government has usurped and restoring them to their State Governments. Of course, the People are not bound by the 1787 Constitution. They can make whatever constitutional changes they think necessary. For instance, we certainly would want to vest in the United States Congress the power to regulate industry in each of the States with respect to pollution emissions and catastrophic accident hazards, so as to protect other States and foreign neighbors from the pollution of their natural environment and the dangers of possible catastrophes, provided that each State reserves the power to make more stringent regulations for itself. Also, the People of the large States should consider dividing up their states into smaller states - again, to make the government close to the People - and also possibly remaking boundaries to suit the natural attachments of the People that have evolved to the present. Also, the Constitution might be revised to allow provisional federal Government powers to effect an orderly transition of power back to the States.

The People should also attend to the foreign and military affairs of the United States, and correct the congressional and presidential usurpations of power in these fields, in order to make the foreign and military policies of the federal government consistent with their will and their true interests. Toward this end, with the domestic affairs powers restored to the States, the federal Congress and the President, instead of trying to govern practically everything in the country, could then concentrate on their real, constitutional responsibilities: mainly those of foreign relations and protecting the country, and in the present critical situation of nuclear weaponry and the danger of nuclear war, {See note no. 22.} the responsibility to cultivate peace and friendly relations with foreign nations and manage the negotiations towards disarmament successfully, and thus prevent nuclear war! In this regard it should be considered that the build-up of nuclear weapons by the United States has occurred under undemocratic, unconstitutional government. Therefore, on this ground alone,the U.S. Government's build-up of nuclear weapons, and its policy and strategies for their use should be subjected to a total review by the People, and control under constitutional government.

Also, with much fewer preoccupations of the Congress, after the restoration of the domestic affairs powers to the States, the elections of the Representatives to Congress would be meaningful, where the responsibilities of Congress would be well-defined, and the positions of each congressional candidate much more in focus. This would enable the public to control the Government policy with respect to nuclear weapons, for example. The Congress could also better attend to its constitutional responsibility of guarding against and correcting unconstitutional Executive war-making and other usurpations of the Executive.

As for the present Constitution, it is not suggested that it is without defects. Critics of the Constitution during the 1787-1788 Ratification Debate warned against giving the federal Government unlimited powers of the purse and sword, and the supreme power to interpret the Constitution, which they argued, would eventually be abused in usurping the powers reserved to the States and otherwise violating the Constitution. Since the Federal Government has ended up abusing its powers, as the critics had forewarned, we may conclude that the Constitution from a practical standpoint is defective; and, therefore, we ought to consider improving upon the Constitution accordingly, by changes to make the division of powers of government more precise, and ways to improve on the checks against usurpation. However, we should be careful not to change the Constitution without fully understanding the theory of the Constitution, and the reasons behind it - the wisdom (and defects) of the existing and original Constitution.
 

Toward improving upon the present Constitution, we should consider reverting back to the original constitutional system for the appointment of the United States Senators, where the State legislatures appointed the members of the Senate, instead of the present system of direct, so-called "popular election" of Senators, which was, in my opinion, ill advisedly made by the 17th Amendment in the year 1913. (The People are represented directly in the Congress by the House of Representatives, which is the purpose and function of this body, according to the makers of the Constitution.) In this way, the State legislatures would have their constitutional link with, and control of, the federal Government, including the interpretations of the Constitution, by the Senate's advice and consent power over the appointment of the Supreme Court judges. This link was specifically intended by the makers of the original Constitution. Indeed, the great shift in the Supreme Court opinions on the Constitution since the 1930s, which effectively broaden the powers of the Federal Government with respect to the internal affairs of the Country, and the powers of the Executive in the field of foreign affairs, has occurred following the cutting off of this vital link between the State Legislatures and the Federal Government by the 17th Amendment.

By reverting back to the State legislatures appointing the U.S. Senators, the States could ensure that the external affairs policies of the federal Government are consistent with and support the domestic affairs policies of the States; and since the State Legislature would be the People's primary political body (not the U.S. Congress) - one in which the People could most practically be represented - the People would have additional control of the foreign policy of the United States, especially the matter of the nuclear weapons and other horrible weapons of mass destruction.

We should also use the constitutional process of electing the President of the United States, where the State legislatures provide for the choosing of "Electors" for electing the President, instead of the presently used method of so-called "popular" election (another disregard for constitutional process), in order to avoid the undemocratic, controlling influence of the Presidential election by powerful factions and money. Remember, the federal Government is constitutionally not to be so dominating in our lives; so the office of President would not be so paramount an office as it now is in the present, unconstitutional Government in Washington, D.C.

The above called-for restoration of Constitutional Government can be accomplished orderly by means of state and federal elections, and a new federal constitutional convention, if necessary. However, the effort must truly spring from the People with a conviction that it is better to have democratic constitutional government than to cling to the status quo of oligarchical government for fear of change, when one takes a full view of one's interests, the condition and problems of the Country, the dangers we face, and experience.

Of course, the challenge is big, but it can be accomplished by concerted action of the citizenry - a Movement for Constitutional Government. As to how this reform of government can most practically be accomplished, we should again turn to the State legislatures, where in principle the citizen has more influence and electoral power - it being not too difficult to get elected to the State legislature or to press for legislation or legislative investigation with one's representatives in the State legislature. Thus, if the People put their attention to it, they could rather easily use the constitutional system of State legislatures (and State Government) to bring the now-colossal United States Government back to its constitutional sphere of operation, and thereafter to govern themselves.

If necessary, the State legislatures can by the Constitution (Article V) convene a second federal Constitutional Convention without any interference or control by the United States Government. Such a Convention could then draft and propose amendments to the Constitution for the States to consider - amendments which would more definitely assure the restoration of constitutional government. A federal convention may be necessary, because it may be impractical for the People to organize to form concerted action to select the members of Congress who would restore constitutional government, due to the large size of the congressional districts for one - whole States for the election of the U.S. Senators - which makes it much more difficult for the People to agree on who should represent them and more difficult for candidates to be known, hence, more easy for the powerful to influence the elections though campaign slogans and advertising techniques, and money. However, since the State Legislature is to be re-established as the primary legislature for the People, by the proposed (and constitutional) plan, the movement to restore Constitutional Government would naturally begin and be centred around the Legislature of each State in the federal Union. Of course, the People should strive to elect a federal Congress that would assist in the restoration of the Constitution.

With restored and effective (improved) constitutional government, we could resolve the nuclear energy issue wisely, and solve the other critical problems facing us as well, and we could create in each State the way of life and culture we want for our happiness and safety - we could form that system of economics, education, industry, transportation, commerce, agriculture, land use and land reform, institutions, regulations of corporations, and so forth, which would enable us to design and make a truly enjoyable way and quality of life and environment. This could be a hopeful, positive effort of a society working to make improvements and solve the critical problems.

The preceding commentary is not meant to disregard or down-play the good things about America, for example, the present efforts to clean up the environment, and the sincere efforts of many in the government, past and present, to promote the economic security and prosperity of the People. Rather, my critical analysis is offered to promote a review of the present system of government and constitutional principles, to ensure that the undesirable things are avoided as best we can and the looming problems and dangers we face are solved and removed.

At this point we might consider specifically a plan for changing over to a non-nuclear way of life, as the nuclear hazards analysis given in my nuclear treatises concludes that nuclear power is unsafe.

It is assumed that a non-nuclear way of life is viable, and one in which the people would be much happier in anyway. It would involve a gradual decline in the use of fossil fuels, which are in limited supply, in favor of renewable energy sources, namely solar, wind power, hydro, wood and other biological fuels, and a drastic reduction in the usage of energy and avoidance of wasteful and unsensible material consumption, while restoring the original quality of the natural environment - a relatively pollution-free environment.

The assumption of the feasibility of such a change is based partly on the fact that people lived about one hundred years ago without so much fossil fuels and the population was roughly half of what it is today. This probably means a way of life involving subsistence farming for much or most of the population but with the aid of advances in technology, more rail transportation of persons, and more village life and decongestion of the presently large cities. A period of about seventy five years is envisioned to make the transition, using our fossil fuels to power our economy, industry, and the transition work during this period. We would first begin with strong energy conservation efforts and installation of pollutant containment equipment on fossil power plants. Also, it is not envisioned that we increase the rate of strip mining for coal, but rather that we curtail and rapidly phase out such land despoiling practices. Then, we would design and build the tools, machinery, facilities, homes, and industry for the new way of life, including analyses of the requirements of materials, land, technology, and population control, with consideration given to land reform, and including also the dismantling of unsightly structures and the decontamination of the land, ridding it of toxic chemical waste and residue.

Of course, before we could adopt such a plan we would thoroughly investigate the feasibility question, and we would resolve the question of the safety of nuclear power plants and the general environmental feasibility of supporting a nuclear energy industry. Also, it is not contended that such a plan would be developed and executed by an authoritative government but would evolve naturally, if democratic, constitutional government were established.

The preceding is only a summary - a "Sketch" - of this author's analysis of the constitutional principles related to the nuclear safety issue. It is hoped that it will stimulate thought and study of the Constitution and its principles, in order to promote as soon as possible democratic, constitutional government to deal with the many serious and urgent problems of modern life, especially the immediate nuclear energy safety issue. Of course, a full treatise is needed to fully treat the constitutional topic. I have been preparing such a work,and hope to be able to write it.

Of course, the full review and application of the constitutional principles toward establishing constitutional government will take time to consider and carry out. In the meantime, and because of the urgency of the nuclear reactor accident hazards, the Congress with the Constitution in view should respect the authority of the People (the members of Congress should consider their oath to support the Constitution) and conduct an immediate review of the accident hazards of nuclear power plants, and take measures to shut down the nuclear reactors, in order to eliminate the hazards of potentially extreme catastrophic reactor accidents, while the States, individually and in the spirit of confederation (the latter by means of investigations and deliberations in the United States Congress) review and decide on the safety of nuclear power plants.

More specifically, the Congress should repeal the Atomic Energy Act and related acts for the promotion and regulation of civilian nuclear power plants (as these acts are unconstitutional), and thereby revoke the operating licenses for the reactors and withdraw the present immunity from public injury and property damage liability which Congress had previously granted to the nuclear industry. These measures would effectively force the shutting down of the reactors. In addition, the Constitution should be immediately amended to bar the operation of civilian nuclear plants, while the States review and decide the nuclear safety question, in order to prevent a State from allowing the continued operation of reactors within its borders, as the reactors would threaten the safety of other States (and other Nations)

If the Congress should judge that nuclear energy is safe, or is an "acceptable risk," and that, therefore, the existing nuclear energy program should be continued, then under the Constitution they would have to propose a constitutional amendment to obtain the necessary authority; and then three fourths of the States would have to ratify the proposed amendment before the Federal Government could continue to develop and regulate nuclear energy - before the existing nuclear licenses could continue in effect. Such is the constitutional process.

Of course, if nuclear power plants are to be developed and operated in the United States, we would want the Federal Government to have the power and duty to regulate their operation and the disposal of the nuclear waste, to ensure the safety of the States; but I would then propose that each State would reserve a concurring authority over nuclear installations within its borders.

If the Congress will not yield, then the States should immediately interpose, convening a federal Convention for the purposes, to effect the shut down of the reactors. These steps are constitutionally necessary, because the whole development of nuclear energy and the subjective judgments of its safety were made by the U.S. Government and forced onto the People by unconstitutional (and undemocratic) acts of the federal Government.

Also, the U.S. Government should stop promoting nuclear energy abroad and negotiate with foreign nations a release of any contractual obligations to supply nuclear power plants, nuclear fuel, and equipment, on the ground that the United States Government's promotion of nuclear energy was done illegally - unconstitutionally. Moreover, inasmuch as the U.S. Government has unconstitutionally promoted the use of nuclear energy abroad, the United States should offer to assist foreign nations in their investigations and evaluations of the accident hazards of nuclear power plants, and generally to help foreign nations avoid potentially catastrophic nuclear accidents, and dispose of nuclear (radioactive) waste.

This concludes my Sketch of a Constitutional Analysis.
 

Richard E. Webb, Ph.D.

Present Address, 29 August 1999:

Raiffeisenstrasse 1
86868 Middelneufnach
Bayern (Bavaria)
Germany

1. I refer to my paper, "The Risks of Catastrophic Accidents at Nuclear Power Plants," Barcelona, Spain, April 25, 1990.  [Return to text...]

2. This unconstitutionality of the nuclear energy program is the root cause of our nuclear predicament. I contend that by reviewing the Constitution in regard to the nuclear issue, we can determine just who should decide the issue.  [Return to text...]

3. Authorities on wealth distribution in America claim that over 80% of the corporate stock in America is owned by just three percent of the population.   [Return to text...]

4. One will find in the literature on constitutional law the use of the expression "welfare clause" when referring to the string of words in Article I, Section 8, "to pay the Debts and provide for the common Defence and general Welfare of the United States." However, strict usage of the English grammar dictates that this quoted string of words should be referred to as a phrase, and not a clause. That the writers on constitutional law would say "welfare clause," instead of "welfare phrase," is but another trick to give the phrase a falsely elevated status in the Constitution, as if the phrase has a more substantial meaning, to suit the aim of these writers to construe the phrase as a grant of power to spend money and to do other things that "provide for the general welfare." In this Analysis I shall refer to the string as the welfare phrase, as that is what it is - a phrase in the text of the Constitution. It remains to determine its meaning; and that it is a phrase, and not a clause, is important in correctly interpreting the Constitution, as we shall see.  [Return to text...]

5. The word "Style" meant the manner of expression made so to put thoughts into words - to convey the intended meaning precisely!  [Return to text...]

6. And the commerce clause too? (This needs to be checked.)  [Return to text...]

7. The .... {Refer to the original manuscript for this footnote, as the copy of the manuscript which I have here in Europe, from which I have re-typed the manuscript for the computer, shows the footnote not clearly.}   [Return to text...]

8. Later the word "national" was removed from the Constitution, to avoid any suggestion that the U.S. Government headed a nation as distinguished from a confederation)   [Return to text...]

9. The resolution [regarding the "national Executive"], together with the other of Randolph's resolutions (see appendix) as amended, were then referred to a "Committee of Detail" to draw up a draft Constitution "conformably" to the resolutions passed by the Convention. The draft Constitution which the Committee of Detail drew up and reported to the Convention takes the form which is essentially that of the final Constitution in respect to the section on the "executive Power."

"[Article] X. Section 1. The Executive Power of the United States shall be vested in a single person. His stile shall be `The President of the United States of America;' and his title shall be, `His Excellency'. ...

Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: ... he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States: he shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, ...He shall be commander in chief of the Army and Navy of the United States, and of the Militia of the Several States. ..."

This form is manifestly consistent with Resolve No.7 that was passed and referred to the Committee, except that instead of vesting the Executive with the "power to carry into execution the national Laws," the draft Constitution was written to declare it the duty of the President to "take care that the laws of the United States be duly and faithfully executed." So the part of Resolve No.7 about vesting in the national Executive the "power to carry into execution the national Laws" was changed so as to establish the duty to see that the laws be executed. But since the President could not discharge the duty without the power to do so, the Committee evidently chose the style of conferring that power with the declaration,

"The Executive Power of the United States shall be vested in a single person. His stile shall be `The President of the United States of America; ..."

By changing the power of executing the laws to a duty to do so, the Committee effectively precluded the kingly prerogative power of suspending the laws or even breaking them, if he deems it for the public good - the branch of prerogative power that is mentioned in Locke's treatise and rather weakly in Blackstone's Commentaries. Also, this form or style of the grant of the executive power must be viewed in the context of the related provision, also put in the draft Constitution by the Committee of Detail, for the legislative power of making those laws which are to be executed, specifically the clause:

"The Legislature of the United States shall have the power ... to make all laws that 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." (Records, II, 182)

This clause, in its final form in the Constitution, was discussed before: The Committee of Detail and the Convention evidently intended to avoid granting the President a specific substantive power to execute the laws, since such a general grant of power would imply the power vested in the President to employ whatever means he deems appropriate to execute the laws. Thus, the Committee devised the necessary and proper clause for the legislative power to determine the means for executing the powers of the Government, and fixing these means by the Laws; so that the President has no discretionary authority to the execution of the laws. He merely takes care that the laws defined by the Congress be faithfully executed. But as he must be vested with the power to carry out the duty, however, he is vested with the "executive Power" to do so. Hence, the "executive Power" is implicitly defined in the context of the duty to "take Care that the Laws be faithfully executed."

10. Litigant A wins, litigant B loses.  [Return to text...]

11. As John Marshall said, the purpose of the courts of justice is to settle controversies without bloodshed.   [Return to text...]

12. Under the original Constitution the States appointed the Senators; and by this power the States had control over the judicial interpretation of the Constitution, as the Senate controls the appointment of the federal Court Judges, including the Supreme Court. Also, the Judges can be removed from office by the Congress upon impeachment and conviction.  [Return to text...]

13. Not including a power to consript men into the U.S. Army and send conscripts outside the United States.   [Return to text...]

14. Protection, that is, from foreign force and insurrection.  [Return to text...]

15. {Mention how the U.S. Government chartered banks create money and end up owning the created money, causing inflation and thereby devaluing the money of the people. At 8% inflation, for instance, the money supply doubles in 9 years, and the Banks and their stockholders end up owning this money - perpetually lending it out and perpetually making interest (profit) from it.}   [Return to text...]

16. Each President since President Woodrow Wilson at least.   [Return to text...]

17. The alluded to unconstitutional Presidential acts are the CAUSE of the involvement of the United States in World Wars I and II.   [Return to text...]

18. In a future treatise I shall demonstrate that the following U.S. war-makings were unconstitutional: (1) President Wilson entered Britain's war against Germany without a prior declaration of war by the Congress; (2) President Roosevelt entered Britain's second war against Germany without a prior war declaration by the Congress, and even violated the laws of the U.S. Congress which were made to maintain strict neutrality, and Roosevelt declared and made war against Germany without prior Congressional resolution (his proclamation of naval war on Germany in the Atlantic), and Roosevelt's declaration of war on Japan months before Pearl Harbor; (3) Truman's "police action" in Korea; (4) Johnson's attack on North Vietnam without a Congressional war declaration, and the acts of Presidents Truman, Eisenhower, and Kennedy which began the war on Vietnam, (5) President Carter's failed attack in Iran; (6) President Reagan's wars in Lebanon, Nigaraqua, and Grenada, and his attack on Libya; and (7) President's Bush's invasion of Panama - and later the attacks on Iraq. There are countless military alliances and the sending of troops abroad. I shall demonstrate these points in a planned treatise: Presidential War-Making, Nuclear Weapons, and Unconstitutional Government.   [Return to text...]

19. Also, consideration should be given to proportional representation in the State Legislature, though I am not now proposing this mode of representation.   [Return to text...]

20. For those who have profited much from the unconstitutional government - the very wealthy - it would mean a dimunition of power and wealth; but again, the object of constitutional government is the safety and happiness of everyone. What good is it to be wealthy in a land that is despoiled, polluted, junky and poor areas, crime ridden, drugs, ugly landscapes, and so on?

{Also, explain how the corporate oligarchy cleverely gets the support of the People for the undemocratic capitalism - the existing capitalism in America erected by means of the unconstitutional government. Many if not most people own some shares in the corporate stock in America, but this ownership is trivial for the most part, as most of the corporate stock is own by a very small fraction of the population, according to the extremely limited studies on wealth distribution. Thus, when the small stockholders defend the existing system of corporations and their protections by the Federal Government, in order to maintain their meager dividends, they secure the enormous wealth and power held by the very few who own practically most of the corporate stock.}  [Return to text...]

21. The present system of free enterprise under unconstitutional government is, in my view, really a scheme by which one can attempt to obtain advantages over others; where the advantages are dispensed by those who hold (usurped) power with a view to promoting their own interests.  [Return to text...]

22. The danger is less so now with the revolutionary changes in Eastern Europe; but nevertheless the situation is still dangerous. {Suddenly now the U.S. war against Iraq! That the President Bush has ordered a blockade against Iraq means that he has unconstitutionally made War against Iraq and commenced hostilities (the employment of force against Iraq) - putting the nation in a state of war. So, the dangers are always present. This footnote was written in August 1990.}   [Return to text...]