The Unconstitutionality of Federal Agencies

Jonathan Plante
Activist, Contributing Author

I was planning on writing my next article as the start of a series of articles, which would serve as a follow-up of my previous article. My plan for the series was to write an article justifying each libertarian policy that the article, “No, Not Gary Johnson” mentioned. I also planned for each of these articles to include specific data showing why libertarians call for the specific policies illustrating that the accusation of the article’s author that ‘libertarian policies would cause economic policy’ is false; and providing the data I used to not only defend libertarian policy, but also convince people that our principles are actually advantageous. I planned to start the series with the libertarian position of abolishing the Department of Education, and in the article, I would provide the data that was able to convince other people that the Department, contrary to popular belief, is actually very inefficient and does not help provide quality education in public schools. In fact, it does quite the opposite.

However, when I started to plan to write this article in my head, I noticed that there was one piece of the libertarian argument for abolishing the Department of Education that was missing: its constitutionality. Now, I know that libertarians – and even many conservatives – throw around the phrase that certain federal government agencies are ‘unconstitutional’; however, an important piece of information from that argument is missing: why federal agencies are unconstitutional.

Additionally, I wanted to include this portion due to lessons I have learned in my current job. As a Financial Underwriter, I work very closely with Sales Representatives, most of whom are not as analytical as am I. They speak very philosophically, and generally rely on arguments based on emotion, rather than on those with data. I have learned through working with these Sales Representatives that justifying my position with data does not always work; but rather, I have to use a combination of analytical and philosophical arguments. I’ve noticed that similar trend with some people with whom I’ve tried to defend the libertarian position – showing some people data to defend the libertarian policies of abolishing several federal agencies does not always work. These people came back at me, stating ‘Why are you purely focusing on data? These are people, human-beings, lives, we are talking about. I don’t understand those graphs you are showing me. They are in a different language.’ I’ve also come to agreement with non-libertarians, but we acknowledge that my arguments are primarily based on economic data while theirs are based on ‘humanitarian principles.’ (I will save my opinion on ‘humanitarian principles,’ for another article. But I will briefly state here that it’s EXTREMELY HARD to develop a set of common humanitarian principles when we, as humans, don’t agree nor know everything.)

While this data makes sense to many analytical and non-analytical people, it didn’t make sense to some of the more recent people whom I was trying to convince – as I just mentioned. So, I used my experience working with Sales Representatives and decided to take a philosophical approach: I shifted the argument to prove that federal agencies – in the specific conversations I had, the federal agency to which I was referring was the Department of Education – are unconstitutional, and, even more importantly, why it matters that these federal agencies are unconstitutional.

With that said, I decided to include this ‘philosophical’ argument in my Department of Education article. But then, when I started writing it, I realized that the argument of constitutionality is germane to all federal agencies. Therefore, an article regarding constitutionality of federal agencies should be its own article and can be used to supplement the economic data which I will provide in in the series of articles I will write to negate the article by Derek Thompson. Furthermore, writing this article once will suffice, rather than having to write it several times for each federal agency about which I write.

Before I begin, I will add that Wednesday night’s debate also caused me to realize that this article should be its own. One of the first questions of the debate included, “[Candidate’s Name], what’s you view on how the constitution should be interpreted: Do the founders’ words mean what they say, or is it a living document to apply responsibly according to circumstances?” I can’t tell you how much I cringed at that question. I would argue that this isn’t even something that should be asked in the first place. However, this question is a perfect segue into the philosophical argument for the constitution: It need not be, and ought not to be, interpreted. And that is precisely the argument with which I started, when trying to convince people of the importance of constitutionality. Here is the order in which I executed my argument.

I. Why The Constitution Need Not Be Interpreted: The Founders’ Vision

The Constitution was written in a very specific way, for many paramount reasons. It was not written to be ‘interpreted,’ but rather applied as a roadmap, or a guide – similar to that of a business plan – for all governmental actions.

The founding fathers wrote our Constitution from the experience of being oppressed by the despotism of a monarchy – the British Crown. The structure of The Constitution was written to form a republic – a republican form of government – because the founding fathers recognized the benefits a republic provided, and the protection with which it provided the people against coercion and oppression.

The founders recognized that in a pure democracy, the majority can oppress the minority; so, by writing a republican Constitution, the founders were able to enumerate basic principles and inalienable rights that were guaranteed to the people, and those upon which could not be impeded by the government. Additionally, the republican Constitution, through use of elections, enumerated the specific powers – and the only powers – that the people would delegate to those whom they elected to be their representatives and the federal government. Finally, The Constitution was written with the intent that its structure would limit governmental powers – by use of three branches, to separate and limit power.

Due to all of these reasons, the way in which The Constitution was written is important: it was written to ensure that the government would not impede on inalienable rights guaranteed to people by Nature; avoid the oppression of a minority by the majority; and prevent government coercion on the people, by spreading the powers among three branches of government and limiting each of those branch’s powers.

The Constitution is a roadmap that must be explicitly followed, in order to protect our liberty. When interpretation occurs, arbitrary reasoning occurs. Arbitrary reasoning leads to coercion, as the people who have interpreted have arbitrarily defined what the law must be. Coercion is unfreedom, and unfreedom is not the liberty for which our founders fought to establish our Nation. Moreover, when governments rely purely on majority rule, and not on principles – or a roadmap – oppression on minorities occurs; the founders precisely argued for a republican form of government through their Constitution, because they understood, through experience, that democracy is not a safeguard to liberty.

Therefore, we cannot interpret the Constitution; there is no interpretation needed to understand the impetus of The Constitution and why it was written the way it was. That is precisely why I, as a libertarian and a lover of liberty, am a lover of The Constitution, because its original form was written to protect and guarantee liberty to all. Moreover, allowing for interpretation that has been caused since the presidency of Franklin D. Roosevelt – which, under his ‘presidency’ almost all actions taken were in direct violation of The Constitution, as he performed actions that caused the very despotism and oppression against which the founders wrote the Constitution to protect us. (I could write a very, very long article on the oppression and coercive power that has occurred since FDR – but that is not my main goal, in this article.)

While providing this background on history, I have received responses such as ‘But Jon, we don’t know what the founders meant when they wrote The Constitution. That was over 200 years ago.’ or ‘Times are different now; we shouldn’t have to follow laws that were established in those times.’ To which I have responded that we actually do know what the founders meant when they wrote The Constitution; and, The Constitution is not a set of laws, but rather a means by which government is limited to create its laws, so that it does not impede on the rights of the individual or let the majority oppress the minority. My second answer usually makes people concede, but they still will posit the first question. So, I will now move on to the next part of my argument on how we do know what the founders meant when they wrote the Constitution: The Federalist Papers.

 II. The Intent of The Constitution for How and Why it Was Written: The Federalist Papers

As many libertarians know, The Federalist Papers are a collection of 85 articles written by James Madison, John Jay, and Alexander Hamilton, providing a case for the ratification of The Constitution. However, many people nowadays don’t know much about this collection of articles – hence why many people might argue that we ‘don’t know the founders’ intent for writing The Constitution.’ But that’s not true; so, that’s what I set out to tell people.

For this part of my argument, I start off by stating that articles made the case for the ratification of the Constitution, but more importantly, these articles provide the reasoning behind how The Constitution was written, and why it included the clauses that it did. Since there are 85 articles in this collection, no one can be expected to read all of them; so, I provide a brief summary of several articles, all of which convey The Constitution’s original intent and prove that it need not be interpreted. I also state that The Federalist have been quoted 291 times in Supreme Court decisions.

Here are the articles, and a brief description each article’s point, that I conveyed to people in order to portray this point. Rather than writing a longer description of each article, I would rather save the reader’s attention to the overall points that I will be making later.

  • 10: The Union as a Safeguard Against Domestic Faction
  • 39: The Conformity of the Plan to Republican Principles
  • 41 and 42: The Powers Conferred to the Government by the Constitution
  • 46: The Influence of the State and Federal Governments Compared
  • 47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
  • 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

Now that it is clear – or that, it should be clear – that The Federalist Papers provide the evidence for what the founders meant when they wrote The Constitution, I then to proceed to the next part of my argument: The Constitution, itself, and its Bill of Rights provide the evidence that all federal agencies are unconstitutional.

III. The Constitution and its Bill of Rights: Article I and the Tenth Amendment

Since I have proven that The Constitution ought to be and must be taken for its original intent, and not interpreted, I have encouraged the person whom I’m trying to convince to examine two specific parts of The Constitution, both of which are very short. As the reader can infer from the title of this section, those parts are Article I and the Tenth Amendment.

  • Article I, Section Eight, states:

“The Congress shall have 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; 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 a 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, dockyards, and other needful buildings;

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.”

It is important to have the entire Section listed here, because the reader will notice that many of the aforementioned powers delegated to Congress have actually been carried out by federal agencies – for which the Constitution does not provide the explicit provision. There is a reason that federal agencies were not provided, and that these powers were enumerated to the federal government – reasons, which, I will describe later in this post.

  • The Tenth Amendment states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

From the above, we can see that the amendment states that all powers NOT delegated to the government are reserved to the states or people. This is very important as it provides proof that federal agencies like Centers for Medicare and Medicare Services, Social Security Administration, and the Department of Education, are unconstitutional: the powers that these aforementioned agencies have are supposed to be conferred to the states; and if a specific state’s Constitution does note enumerate those powers, these powers are conferred to the people.

The reaction I have received, after all this, is that people say “Well, the Constitution was written over 200 years ago. Times have changed. These rules don’t apply anymore.” While that reaction is almost correct, it is not accurate. The founders knew that the Constitution wouldn’t apply for all periods of time, and allowed for an amendment process so that the people of the United States were not held to the standards of those of the 18th century. However, the founders also recognized that The Constitution provided a roadmap that could be followed for eternity, as it protected the people against despotism, oppression, and coercion; therefore, they wanted it to taken at its word, and not interpreted. To prove why it cannot and must not be interpreted, we can examine a specific situation – even though there are many – in which an interpretation occurred. This is the next section of my argument: the interpretation of the Fourteenth Amendment.

IV. An Example Interpreting The Constitution: The Slaughterhouse Cases

In 1873, the so-called “Slaughterhouse Cases” made it to the Supreme Court. Essentially, what happened was that the City of New Orleans had passed legislation to stop butchers from operating near bodies of water, because doing so contaminated the drinking water and caused sickness among the population. Therefore, in order to stop this contamination, the legislation provided one entity, The Crescent City Live-Stock Landing and Slaughter-House Company, the authority to run a slaughterhouse on the side of the Mississippi River that wouldn’t contaminate the water. Crescent City didn’t have a ‘monopoly’ per se, as it rented out its locations to other butchers; however, it did act as a monopoly, as it was very arbitrary and created many discriminatory barriers to entry for butchers. This angered a group of butchers, and caused them to take Crescent City to court; this ended up all the way to the Supreme Court.

The Supreme Court’s ruling was in favor of Crescent City. To defend its decision, the Court used its interpretation the Fourteenth Amendment – specifically, the due process, privileges or immunities, and equal protection clauses. For all of you historians out there, this might seem a bit odd to you: The Fourteenth Amendment was written to provide former slaves, who were now free by the Thirteenth Amendment, citizenship and equal protection in the eyes of the law. This amendment has not the slightest similarity to the issues of the Slaughterhouse Cases.

I recognize that this isn’t an amendment that was written by our Founders – and for which there is no accompanying Federalist Paper article; however, I chose this situation for a specific reason. These Cases were pivotal in the movement of interpreting The Constitution; this was the time during which interpretation really ‘began.’ Although there are no detailed articles proving the intention of the amendment, the message doesn’t change: The Founders wrote The Constitution and its amendments to provide a guide, not to be interpreted by the Courts. This is evident in The Commonwealth of Massachusetts’s Constitution – which was partially written by John Adams – where it says “…and judicial powers…to the end it may be a government of laws, and not of men.” The Court overstepped the powers provided to it in Article III by interpreting the Fourteenth Amendment, because it acted not based on rules, but based on men interpreting the amendment. This ought not to be, and must not be, because any interpretation leads to arbitrary power, and arbitrary power leads to coercion. This is precisely what the founders wrote Founders wrote the Constitution to protect against. This brings me to my next point: The dangers which arbitrary power can lead to.

V. The Dangers of Interpreting The Constitution: Arbitrary Power

While I could have provided historical situations which demonstrate how interpretation leads to arbitrary power, and how arbitrary power leads to coercion, I didn’t do that; but rather, I invited the person with whom I was speaking to think about how dangerous interpreting a rule can be – since, The Constitution really is just a set of rules on governmental power. The overwhelming response which I receive in return that it is dangerous, and that we ought to have a set of rules.

Although I am happy that I was able to make these people concede up to this point, I wasn’t done: my goal was to show how federal agencies are arbitrary and create coercive situations. That is the next, and final, portion of my argument.

VI. How Federal Agencies Are Arbitrary

Here is where I end my argument – and also the only part of the argument I wish I could have provided; however, as sad as it is to say, many people are not aware of what The Constitution, the twenty-seven amendments, and The Federalist Papers say.

I begin by saying that federal agencies are not only unconstitutional – since the powers held by the federal agencies are actually those delegated to Congress by The Constitution –  but also arbitrary. All 85 articles within The Federalist Papers discuss the means of limiting power, and that power is limited by allowing people to vote for people in the positions of government, in every election. However, we don’t elect people in federal agencies – so they really don’t answer to us, the people. We can’t choose someone new to work in a federal agency, such as the Food and Drug Administration, because we do not feel that he or she is performing well enough. These federal agencies are also not directly governed by The Constitution; each has its own set of rules which each follows. These rules were not voted upon or agreed upon by us, the people, but rather these agencies. Sounds pretty arbitrary, right? Well it is. But it’s also a direct violation of the Tenth Amendment.

I then describe that state to the people with whom I am talking that, the same danger they saw with rules being interpreted arbitrarily, is also very evident in the federal agencies. Again, the overwhelming response I received back was, “Wow. I didn’t think of it like that. That’s really true. So that’s why libertarians want to get rid of federal agencies? They could really take away our freedom?! Can you show me those graphs again?”

I want to caution the reader to know that this argument didn’t work for everyone. As long as this is, it actually flowed much quicker in person. I also did not provide as much detail as I would have wanted, because I didn’t want the person with whom I was talking to get lost. But rather, I wanted to keep their attention, and appeal to the things that mattered most to them.

In my upcoming articles, I will provide a brief summary of how each federal agency is unconstitutional, referring readers to this article. But, the main focus of my next articles will be on data. Stay tuned for that. But in the meantime, I encourage the reader, if he or she does not know some of the things I mentioned in this article, to read more into them. Or, even contact our Managing Editor, Justin O’Donnell so that someone from the Staff could write an article about it! And, also, keep spreading the message of liberty.

In liberty and may freedom, always, ring:

J.W. Plante

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