by Harrison H. Schmitt
The current New Mexico Congressional delegation and its Democratic Party leaders in Washington have served neither New Mexico nor the United States well in 2009. The prospects for 2010 are even worse.
Senators Jeff Bingaman and Mark Udall and Congressmen Martin Heinrich, Ben Ray Lujan, and Harry Teague continue to undermine liberty and constitutional government in America. Effectively advocating national socialism, they persist in supporting and enabling abuse of the Commerce Clause of the Constitution as well as the 5th, 10th, and 14th Amendments to that founding document. As a consequence, regulation substitutes for liberty and bureaucratic nannies replace personal responsibility – all at the financial expense of the liberty and tax dollars of working New Mexicans.
The Founders intended for the Constitution to limit the powers of the Congress to “all legislative powers herein granted,” with unspecified functions of government later left to the States and the people by the 10th Amendment. In this context, the Commerce Clause of Article I clearly aims at providing a uniform flow of commerce “among the several States” and not at regulating ALL interactions among the people. The Courts’ too often successful argument that the Commerce Clause can be paired with the Necessary and Proper Clause of Article I still stands wrong on its face.
The Necessary and Proper Clause specifically refers to the “execution of the foregoing powers” that is, enumerated constitutional powers and no others, a principle that must be reaffirmed.
Additionally, the 5th Amendment to the Constitution states, “No person shall be deprived of life, liberty, or property without due process of law.”
After the Civil War, the 14th Amendment was ratified and requires that “No State shall deny to any person within its jurisdiction the equal protection of the laws.” Although specifically applicable to the “States,” the “equal protection” clause of the 14th Amendment, taken in concert with the “due process” clause of the 5th Amendment, has come to apply to the Federal Government as well.
Many federal laws and proposed laws, as well as regulations, therefore are unconstitutional in that they reward or penalize some individuals and not others, depriving those individuals of “equal protection.” In addition to there not being specified federal power to do so, restricting individual choice in the purchase of health insurance, in education, and in energy use would be just three currently visible examples of unconstitutionality with respect to “equal protection.” Finally, additional incompatibility with the 14th Amendment occurs when States are required to enforce federal law that violates “equal protection.”
The Constitution’s 10th Amendment leaves constitutionally unspecified functions, or non-enumerated powers, of government to the States and the people by stating: “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.”
Thus, the United States Government, that is Congress and the President, have no constitutional authority to exert power over, for example, otherwise legal individual health decisions, energy production and use, private business conduct, educational desires, labor relations, and financial contracts. In these and other areas, the Delegation has allowed Government to erode the peoples’ liberty and States’ authority.
Have States like New Mexico served their citizens well under the power of the 10th Amendment? Clearly not well enough; but that is New Mexico’s problem to fix, not the Federal Government’s.
One does not have to look far to find examples of existing or proposed federal laws and regulations, wrongly supported by the New Mexico Delegation, that are unconstitutional on their face under Article I or the 5th, 10th, and 14th Amendments. These include mandated limits on our choices of
- health care and health insurance
- automobiles and other energy use
- K-12 education and
- business-employee and other free enterprise relationships.
Also, the Delegation has done nothing to prevent the taking of private property from one person for more favored private use by another and prohibited by the 5th Amendment.
The New Mexico Congressional delegation has wandered far into an unconstitutional wilderness with its advocacy and support of heavy handed federal control of health care, home ownership, business and labor relations, financial institutions, executive and employee salaries, energy production and use, consumer goods manufacturing, takings of private property, and the list goes on and on.
New Mexicans must join with the clear majority of like-minded Americans elsewhere to protect liberty and take back control of their governments. It is obvious that our current Senators and Representatives in Congress will not do this for us.
Harrison H. Schmitt is a former United States Senator from New Mexico as well as a geologist and former Apollo Astronaut. He currently is an aerospace and private enterprise consultant and a member of the new Committee of Correspondence.