A Citizen Statesman's Guide to Proper Lawmaking
by Earl Taylor, Jr.
Just ten years before Thomas Jefferson died and after many years of observing people in offices of political power, he commented: "Our legislators are not sufficiently apprised of the rightful limits of their powers...." He could have made the same observation in our day nearly two centuries later. Evidence is plentiful to show that when people are elected to public office and especially after they have been in office awhile, they begin to feel they have authority to do about anything they want as long as they can get enough votes to do it.
Any student of the U. S. Constitution can easily outline the limits of power of the federal government. That document gives Congress, for example, the power to do about 20 things which can be itemized quickly by reading Article I, Section 8. The 10th Amendment clearly limits the federal government to those express powers outlined and says that all other powers remain with the states and the people.
Although the tenth amendment is violated daily on the federal level, no Congressmen can plead innocent of knowing the tenth amendment prohibitions - they are there for all to see.
But what about the vast area of government activity on the state and local levels? Are there specific delineations of powers in state constitutions and city charters so that there can be no misunderstanding as to the powers delegated to these levels of government?
For the last several years, I have read nearly every bill introduced in the regular sessions of the Arizona State Legislature. Few experiences have given me more insight into the thinking of individual legislators. While a very laborious task, (there are about 1200 bills introduced each year) I nevertheless discovered that most legislators must think there are no bounds to their lawmaking. I was astonished to see a bill for about any wish any political person ever had. Would you like to give a home to all the poor people? There was a bill to do it! Would you like to provide health care for all the so-called poor people? There's a bill! Would you like to regulate mothers as to what they can feed their children? There's a bill! Do you want to save people from their own "stupidity"? There's lots of bills to do that! You name the idea - any idea, and there probably has been a bill introduced to cover it. As I said, I was amazed. I went again to the Arizona Constitution to see if there were perhaps some limitations put on lawmakers as there are on the federal level. Even though most state constitution are many times longer that the U.S. Constitution, there are few clearly defined limits as to what legislators should be doing and what should be off limits to them. I could not agree more strongly with Jefferson's observation that our legislators are seriously lacking in understanding what their role really is.
Whether limits of power are spelled out in constitutions or not, honest legislators should be bound by higher principles of conduct toward those whom they serve. These higher principles should ring so loudly in the ears of public officials that even in the absence of specific written limits, they should know their bounds.
It is hoped that a discussion of these higher principles will provide a better understanding of the proper role of government and the proper role of an elected public official within that government.
These ideas are not new with me. I have studied them and their application for many years. At the end of this discussion is a short bibliography of the resources mostly used in this paper. I have avoided using extensive footnotes but gladly refer interested readers to these sources for more extensive study.
The Origin of Human Rights
Any discussion of government power will always lead the honest student back to the question "Where did our human rights come from?" There can be only two possible answers to this question. Either they were given by God or they are granted by government. If one concludes they are bestowed by government, then one also must accept the idea that these rights can be denied by government. The Founding Fathers flatly rejected this concept and in the Declaration of Independence declared "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." They further defined the "pursuit of happiness" as the right to have and enjoy the fruits of one's labors.
Volumes have been written attempting to prove that human rights were God-given, but to the Founders it was so logical and self-evident, the discussion need not be carried further. All individuals have the same God-given rights. This is the first premise to our discussion.
Reduce the Complex to the Simple
Remember when you were faced with a difficult problem in math, chemistry, or physics and it looked impossible to solve because it was so complicated? What did your teacher tell you to do? Break it up in small, understandable units and solve it a step at a time. That is especially true today in the field of computer technology.
I have found this method very effective when trying to analyze political questions. Since people existed before governments, what kind of rights did the people have when there were no governments and just a few individuals? The answer: The same right to protect one's life, liberty and property that we have today. God given rights have not changed just because we have more people or because we have formed governments.
The Origin of Government
Each of us has a right to stay up all night and watch for intruders who might try to infringe on our right to life. We also have the right to stand out in front of our homes 24 hours a day with a bucket of water just in case a spark lands on our home. We have the God-given right to protect our lives and our properties, two essential elements of our freedom. But none of us wants to spend his time doing this all day and all night? So we get together and agree to pool our resources and hire a sheriff and a fireman. At that moment, government is born. The people have created an entity to serve them.
What Authority Does this Government Have?
When citizens band together and hire others to do something for them, they each give the hired servants certain limited authority. Can the servant do more than what he is authorized to do by his master? Definitely not! Does a sheriff or a fireman automatically accrue more authority with the passage of time? Definitely not! Do the public servants automatically have more power to do more things just because more people join the community? Definitely not! The authority of the public servant is never greater than that of its citizens individually. Government has no innate power or privilege to do anything. Its only source of authority and power is from the people who have created it. People can give to government only those powers as they themselves have in the first place. Since man created government to protect his inalienable rights, it follows that man is superior to the creature which he created. Man is superior to government and should remain master over it. Even one who does not believe in God-given rights can appreciate the logic of this relationship. Proper government activity lies within delegated powers and no further and individuals cannot delegate to government a power they do not have in themselves.
If You Can't do It, You Can't Delegate It
Suppose Mr. Jones decides he needs an automobile but doesn't have the money to buy one. The Smith family next door has two cars, so Mr. Jones decides he is entitled to share in his neighbor's good fortune. Is he entitled to take his neighbor's car? Obviously not! If the Smiths wish to give it or lend it that is another question. But so long as the Smith family wishes to keep its property, Mr. Jones has no just claim to it. If Mr. Jones has no power to take the Smith's car, can he delegate any such power to the sheriff? No. A person cannot delegate a power he does not have.
How About A Public Vote?
Even if everyone in the community desires that the Smiths give a car to the Jones, they have no right individually or collectively to force the Smiths to do it. What if they held a public vote on the issue? The answer is the same. Individuals cannot delegate a power to government they themselves do not have. This principle, as explained by John Locke, was clearly understood by the Founders of our country: "For nobody can transfer to another more power than he has in himself..."
The Key To Proper Government Activity Is Individual Conscience
Government, then, is limited to only those spheres of activity within which the individual citizen has the right to act. The principle is this: People should commit no act in the name of government which would be wrong for them to do as individuals. The inherent nature of a good or an evil act is unaffected by changing the number of people involved in its commission. If an act is good and proper for an individual acting alone, it is good and proper when done in concert. An act which is evil or improper when done by an individual is equally evil and improper when done by a group even when the group is acting in the name of government. The rightness or wrongness of every act performed in the name of government, then, can be determined by applying the test of individual conscience. This is the fundamental key to determine the limits of governmental power.
Two of our great Founding Fathers recognized the importance of public policy having its roots deep in the moral code of the individual. George Washington said, in his first inaugural address, "....the foundation of our national policy will be laid in the pure and immutable principles of private morality." Benjamin Franklin stated: "He who shall introduce into public affairs the principles of primitive Christianity will revolutionize the world."
If I Would Punish, then the Government Can Punish.
Another important test of proper laws is this: If it were up to me as an individual to punish my neighbor for violating a given law, would it offend my conscience to do so? If punishing my neighbor would offend my conscience then I should never authorize my agent, the government, to do this on my behalf.
Actually when individuals give their consent to the adoption of a law, they are specifically instructing the police - the government - to take either the life, liberty or property of anyone who disobeys that law. This may sound extreme but unless laws are enforced, anarchy results.
What Then Should Government Do?
The fact that government officials have no right to do to the citizens that which the citizens have no right to do to one another is succinctly stated by Jefferson in the following words:
"Our legislators are not sufficiently apprised of the rightful limits of their power; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. The trial of every law by one of these texts, would lessen much the labors of our legislators, and lighten equally our municipal codes." (Jefferson to Francis W. Gilmer, June 7, 1816)
Jefferson clearly enumerates the three areas of legitimate government activity - (1) Punishing Crime (2) Compelling each person to bear his fair share of the cost of government and (3) Arbitrating and enforcing rights between citizens. He states that every law may be tested by one of these three requirements.
Temptations of a Politician
The political arena provides a most effective way of exercising control over someone else. Numerous examples in history could be given of individuals or groups which have sought control of government as a means to control the activities, property (including money), and even the thinking of large numbers of people.
Political power is like military power. Normally, a person does not achieve this power because of his goodness, his honesty, or his high morals. He achieves prominent positions of power if he can persuade enough people to support him. Gaining political power is many times a function of how much money one has available or how he can otherwise manipulate public opinion. George Washington expressed concern that Americans would forget that government is force. Said he, "Government is not reason, it is not eloquence --it is force! Like fire, it is a dangerous servant and a fearful master!"
People who hold political offices, then. are in extremely sensitive positions. One decision can mean the livelihood of many people. One decision could mean the success or failure of a whole industry.
Benjamin Franklin said there are two temptations which beset a politician --the love of power and the love of money. The temptation for a politician to do through government what an individual would not have the right to do, that is, to take from the "haves" and give to the "have-nots", is a very powerful temptation indeed, and although government has no authority to do such a thing, nearly every politician succumbs to the temptation to do it anyway. Such activity directly violates the equal protection of life and property - principles upon which our republic is based.
A Person's Honesty and Morality is Expressed in His Political Philosophy
No better measure of the degree in which we believe in equality of mankind was ever given than was declared by Christ in what has become known as the Golden Rule. "All things whatsoever ye would that man should do to you, do ye even so to them." (Matt. 7:12) The kind of people we support for our lawmakers and other public officials and the kind of laws to which we give our consent are, in a very real sense, an expression of how much freedom we want to allow our fellow citizens to enjoy. One of the marks of a truly honest and moral person is that he will desire the same amount of freedom for others that he expects for himself. Every politician shows by his actions if he is a true believer in the Golden Rule. For example, progressive income tax laws which forcibly take from those who have and give to those who have not is a violation of the Judeo-Christian mandate "Thou shalt not steal". Consenting to welfare laws which take away the work incentive violates the command "Thou shalt not covet thy neighbors goods". Laws which undercut traditional family moral values tear at the standards "Honor thy Father and thy Mother" and "Thou shalt not commit adultery".
In a very real sense, the degree to which one is honest and moral is reflected in his political philosophy. The necessity of injecting godly principles into political activity was understood by Cicero, the great Roman statesman, when he said "For there is really no other occupation in which human virtue approaches more closely the august function of the gods than that of founding new states or preserving those already in existence."
He was saying there was something godly in searching for that balance of laws which equally protects all life, liberty, and property and does not infringe upon people's personal freedom to achieve or to fail.
Who Should Have This Power?
Once a power has been rightfully granted to government, there is still one more question which must be answered. Which level of government should have this power? It is a wise and time-tested principle that the smallest and lowest level that can possibility undertake a task is the one that should do so. Again it is Jefferson who expressed the Founders' philosophy in this regard:
"The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, law, police, and administration of what concern the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body."
Once again, however, the temptation of most politicians is to use a higher level of government to force something to happen that they couldn't accomplish on a lower level. A simple illustration will suffice: Citizens of a single community are very capable of caring for the "homeless" in their own community if they choose to do so. The problem is visible for all to see and any abuse of the help extended to the needy can be easily detected and corrected. But lets say the people of the community choose to take no action through their city government for whatever reason and a do-gooder legislator introduces a bill to appropriate state funds to care for the homeless in this community. This proposal violates the equal protection of property of those in the state who do not live in this community by attempting to take their money to pay for someone else's problem.
It is so tempting to a politician who has become accustomed to his position of power to try to use force from a "higher level" to make something happen on a "lower" level. By this same twisted reasoning we now have money from one part of the country being sent to Washington D. C. to care for the "homeless" in some far distant and unknown communities. By this same logic (or illogic) we could one day have the United Nations directing our cities and towns.
To Judge a Proposed Law or Program, ask yourself:
If I were acting individually would it be right for me to require this of my neighbor?
Could I, in good conscience, punish my neighbor for disobeying this law even to the point of personally taking his life, his liberty, or his property?
Is this the smallest or lowest level of government that can possibly undertake this task?
You make the Decision
Here are some actual bills introduced into the Arizona Legislature in recent sessions. They are similar to many you will find in your own state legislature. How would you judge them?
HB 2063 Board of Respiratory Care Examiners - This bill provides a whole new bureaucracy in state government to license and regulate just about everybody who tries to help someone else breathe easier. It is just one of scores of proposals each year to license and regulate nearly every aspect of business in the state. A whole new agency of government grows out of such legislation. Ask yourself - if you were acting individually could you force your neighbor to get permission from you before he practiced respiratory therapy? Would you personally punish him if he didn't ? If not, where does the government get the authority to require it?
HB 2240 Swimming Pool Enclosures Required. What person, acting individually, would think of trying to force his neighbor to fence his pool? If individuals don't have this authority, where then does the government get it?
HB 2067 Employer Dependent Day Care Tax Credit - This bill gives some larger employers a direct credit on their taxes for providing day care facilities for dependents of employees. Other taxpayers, of course, must make up for what benefits are granted to these favored few. Ask yourself - it you were acting individually, could you take money from some and give to another for a cause you were promoting? If other taxpayers refused to take up the slack, would it offend your conscience to use force against them?
HB 2028 Tax Reform Act of 1990. This bill raises tax rates to generate $250 million to pay for new programs and pay increases for government employees. Ask yourself - as an individual, do you have any authority whatsoever to extract from your neighbor approximately 40%-50% of his earnings to pay for salaries and programs of multitudes of bureaucrats on all levels of government. As Jefferson noted, individuals have a natural duty (and therefore obligation) to pay for basic necessities in society such as protection. But where does government get the authority to force collection of all it wishes to have - certainly individuals don't have authority to steal!
HB 2354 Legalize Cohabitation and Adultery - Individuals, singly or in legislative groups, are as powerless to alter the fundamental laws of good and evil as they are to alter the law of gravity. It is the utmost arrogance to think otherwise. When private immoral behavior spills over into the public arena (and it eventually always does) then I have an individual right to protect my family from such and I can give government authority to do so.
SB1250 Mandatory Seat Belt Usage - Can I as an individual require my neighbor to buckle up? Would it offend my conscience to punish my neighbor for not using a seat belt? If individuals don't have that authority, where does government get it?
HB 2351 Omnibus AHCCCS Expansion - This bill greatly expands health care benefits to people above the poverty level. This is a classic welfare proposal. Suppose my neighbor was eligible to receive $500 in health care benefits and that I was supposed to collect it from ten of my neighbors at $50 apiece. Would I go to my neighbors and demand they give me money to give to another? No. Where does the government get the authority to collect it then, if we as individuals do not have it?
HB 2200 Requiring Drug Testing of School Bus Drivers - Do I have the right as an individual to require a drug test on a person who wants to drive a bus I'm helping to pay for which is also carrying my child? Yes. Then I may delegate that power to the government.
HB 2208 Preservation of Human Life - This bill would outlaw the killing of unborn babies. Do I as an individual have the right to prevent another person from taking the life of a third? Indeed I do. Can I delegate that right to government? Yes.
HB 2225 Requiring CPR Training For High School Graduation - Is the state the lowest level of government which could require this? No. Local school districts are very capable of making such requirements if they wish to do so.
It Takes a Lot of Faith to Be Free
To some this discussion may sound heartless and insensitive to the needs of those less fortunate individuals in our society. The battle cry of the "lame, the sick, and the destitute" is a fervid, but false solicitude for the unfortunate and has served the professional do-gooders well who have sought government solutions to all our problems.
But as Henry David Thoreau once said, "And yet government never furthered any enterprise. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more if the government had not sometimes got in its way."
Actually, the United States has fewer cases of genuine hardship per capita than any other country in the world. Our progress is a direct result of the application of the principle of freedom we have been discussing here. As we see these principles being violated and our system deteriorated we must become so familiar with these ideas that we can discuss them with confidence. We must have faith in freedom. That is really the only way freedom will ever last. It is a contradiction of terms that we can "force freedom to work".
Let's teach these principles to our children and spread them to all we know. Faith requires action and it takes a lot of faith to remain free. And for sure, God will help us.
Allison, Andrew, The Real Thomas Jefferson
Allison, Andrew, The Real Benjamin Franklin
Andersen, H. Verlan, (late) Professor, BYU.
Bastiat, Frederick, The Law
Benson, Ezra Taft, An Enemy Hath Done This.
Skousen, W. Cleon, The Five Thousand Year Leap
Skousen, W. Cleon, The Making of America
PS: Don't miss our Christmas specials presented in the accompanying flyer. Pass on these great ideas to your children and grandchildren!