They say the three legs of retirement include Social Security, savings, and employee pensions. It seems many things in life come in threes. There are three strikes, three little piggies, three days grace, and Jesus’ death and resurrection in three days. But this post isn’t about packing away money for your future or nursery rhymes.

Government also comes in threes.  The Executive, Legislative, and Judicial branches, to be exact, but these are only part of the story. Sadly, the three branches of the federal government can and do steal your freedoms.  But that statement alone doesn’t explain how they are empowered to do it. [Side note: the founding fathers set up three branches of government to help stave off infringement!] In this day and age of a federal government solution for every issue of national interest, the feds have gone to great lengths to justify their expansion of power using the Constitution’s own words. The three legs of infringement include the necessary and proper clause, the commerce clause, and taxation (welcome to the infringement family, IRS!).

Commerce Clause

Several posts on TBP in the past months have explained in no uncertain terms that the commerce clause was intended to regulate commerce between the states, not anything under the sun which may or may not pass through state lines in a private transaction. Only through expansion of the commerce clause’s original intent could the government justify the ATF; authority over regulating tobacco, alcohol, or firearms is not an enumerated power in Article 1 of the constitution. Montana and several other states have passed their own state law to exempt firearms produced and sold within the state from federal regulatory authority, on the grounds that the firearms do not cross state lines and are therefore do not fall under interstate commerce [1]. More power to them. The law is still stuck in litigation as the feds responded with a heavy hand to shut down this unmistakably ‘dangerous’ display of 10th amendment rights [2]. From my point of view, Montana has a slam dunk on this law for the following reasons:

  • The federal government was never supposed to regulate everything which crossed any state line in the first place. To support such a position is to enrage our founding fathers and the enumerated powers they enshrined in the Constitution. Just read this blog for more on this subject.
  • Under the Constitution, the federal government can absolutely not regulate things which are produced and sold within an individual state, unless already included in the enumerated powers.  The language of the Constitution is clear.
  • The federal government is not able to regulate firearms. Do you think our founding fathers would have allowed the government to regulate the very tools that were most dear to the public’s ultimate freedom?
  • The 10th amendment’s language clearly reserves the regulation of all items not in the enumerated powers to the states or people.

Even the FCC exists today because of the commerce clause. In all honesty, regulating the wireless and broadcast spectrum may actually be a noble goal of the federal government and loosely related to interstate commerce. However, the power to regulate the frequencies of electronic communication is not explicitly written in the constitution. If this is important for the feds to regulate, and congress scrupulously abides by the enumerated powers, then how can this gap be addressed? Amend the Constitution! If something like this is imperative for Congress to regulate, the option presented by our governing documents is that of a Constitutional amendment. It should be easy to build support for an amendment like this if it is truly a necessary expansion of federal government power.

Necessary and Proper Clause

Its seems that anything of national interest has been deemed ‘necessary and proper’ for Congress to deal with. This madness started brewing nearly 200 years ago in 1819 with McCulloch v. Maryland. Appealed to the Supreme Court after a lower court sided with the State of Maryland, the case was previously decided by an appeals court that concluded that the Constitution did not mention the creation of banks as a role of Congress. In the Supreme Court decision, Chief Justice Marshall acknowledged that Congress did not have the ability to create a bank under the enumerated powers. However, he cited the necessary and proper clause as the authority for the power of Congress to create a bank that was not expressly authorized.

If a single Constitutional clause can be used to expand the government in any way deemed important at the time, then it seems like dreadful waste of paper to enumerate any powers of Congress in the first place.

Lawmakers on both sides of the aisle (except perhaps Ron Paul and others like him) have shown that they believe Congress can regulate anything it wants to. Democrats demonstrate their unwavering belief that government should be involved in nearly every aspect of the one’s life with every new regulation passed. Meanwhile, across the aisle, Republicans claim that they are not the party of more government. However, their actions in the last 20 years have consistently expanded federal government authority and added reams of new laws to the federal register. These new laws have added fresh new ways to make criminals out of otherwise law-abiding citizens.

Every time a constituent approaches a lawmaker about adding new federal laws outside of the enumerated powers, it is the responsibility of that representative to remind his constituents of the narrow authority of Congress’s power, and, if necessary, respectfully decline all new laws that do not adhere to the spirit and letter of the Constitution.


Prior to the Supreme Court’s Obamacare decision, some may not have included taxation as an enabler of infringement. By now we are aware that the Obamacare decision held that the individual mandate was Constitutional only under Congress’s power to tax [3]. TBP readers have certainly grasped the gravity of this decision. Americans were dumbfounded to learn that congress can literally make you do anything they want so long as they tax you for not doing it. The Obama administration was similarly surprised by the court’s reasoning, given they had previously gone to great lengths to explain this mandate was “absolutely not a tax” [4].

Just imagine the variety of products and services that you could be forced to purchase in the future or risk a ‘penalty’ tax. Products that don’t have a viable economic value proposition such as electric cars and wind turbines (both are subsidized by you, too!) could become required property for all commuters and homeowners. To those who may say “well, those cost too much so the government wouldn’t require them,” how is it logically different than requiring you to purchase health insurance?  Electric cars would be good for you.

What about a tax for not purchasing potatoes? What about a tax for not cooking your potatoes to the government’s standards? What about a tax for not eating enough potatoes? What about a tax for not eating your potatoes at all? What about a tax for throwing your potatoes in the garbage instead of a compost pile?

Yikes. Potentially forcing all this potato stuff on me is making my head hurt. Perhaps I’ll just feed those gems of starchy goodness to the birds in the yard…wait…is that prohibited by federal law yet?

Yours in freedom,

B.A. Smith


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